A CORK doctor facing allegations of professional misconduct claimed in the High Court yesterday that he had a constitutional right to have the inquiry by the Medical Council's Fitness to Practise Committee held in public.
The President of the High Court, Mr Justice Costello, reserved judgment but said he would try to give it as soon as possible.
Dr James M. Barry of Glanmire, Co Cork, the doctor at the centre of allegations that he videotaped women patients, is challenging the committee's decision to hold the inquiry in private.
The outcome of his action could affect several cases already before the committee, including an inquiry into allegations against Dr Moira Woods, sidelined pending the court's decision.
Dr Barry's challenge results from his Supreme Court appeal against the High Court decision in November to refuse him leave to seek a judicial review of the committee's decision.
In December the Supreme Court overruled the High Court decision to the extent that the court could carry out a judicial review under two points only.
First, the committee was not entitled to rule that its proceedings be held in private once the doctor had requested otherwise. Second, the proceedings were conducted and a decision made in circumstances inconsistent with any objective separation of the function of the prosecutor and adjudicator of the tribunal.
The inquiry, held under Part of the Medical Practitioners Act began in private last November. The Supreme Court was told that the substantial hearing had not started.
Yesterday Dr John White SC for Dr Barry, said his client had nothing to gain from a private inquiry. His client had no reputation left, he said.
Dr Barry had a right in justice, when faced with such serious charges, to have the protection of a public rather than a secret trial, he argued. Any issue of sensitivity could be dealt with in camera.
A public inquiry would ensure that public scrutiny would temper the conduct of the Medical Council as prosecutor and adjudicator. The conduct of the council and the committee in relation to the inquiry to date demonstrated that there was a vital need for this protection.
Dr White referred to the public naming of Dr Barry and claimed that the council had solicited complaints. He also claimed there was grossly improper comment on a case yet to be determined and an incestuous relationship between the council, the Fitness to Practise Committee and the prosecutor.
Mr Kevin Feeney SC, for the Medical Council, said the council's committee did not interfere with a doctor's constitutional right to fair procedures because a doctor was entitled to a full hearing in court.
Once a prima-facie case was made against a doctor the committee proceeded to hold a full inquiry and the scheme envisaged that the registrar would present the evidence. Any decision by the committee was not made public without the consent of the doctor concerned unless the doctor was found guilty of professional misconduct.
The committee always had a discretion under the Act to hold inquiries in private or public because it was dealing with relationships between doctors and patients, said Mr Feeney. This discretion was important because the Fitness to Practise Committee did not have the same protections as a court of law.