Richard Casey (applicant) v the Medical Council (respondent).

Judicial Review - Whether Medical Council has power to impose conditions in absence of finding of professional misconduct - Whether decision of council ultra vires - Medical Practitioners Act 1978, part V, sections 45, 46, 47, 48 and 51.

The High Court (before Mr Justice Kelly); judgment delivered 4 June 1999.

IN advising the applicant to take certain professional steps and attaching certain conditions to the retention of the applicant's name on the General Register of Medical Practitioners, it was not necessary that a finding of professional misconduct be made against him. All that is required under part V of the Medical Practitioner's Act 1978 for the Medical Council to utilise these powers is that an inquiry is held and a report made by the committee.

The High Court so held in concluding that the council had not acted ultra vires its powers and pointing out that in any case the Act required that that court affirm such decisions of the council.

Padraig McCartan SC and Seamus Noonan BL for the applicant; Kevin Feeney SC and Seamus Woulfe BL for the respondent.

MR JUSTICE KELLY outlined the facts of the case saying that allegations of professional misconduct made against the applicant by a former patient were inquired into by the Fitness to Practise Committee (the committee) on foot of a complaint made to the Medical Council (the council). Following an inquiry, the committee decided that there was insufficient evidence to find the applicant guilty of professional misconduct on the basis of the criminal standard of proof. However, it attached several professional recommendations to its finding. The council invited the applicant to make a submission before they reached a decision in accordance with part V of the Medical Practitioners Act 1978 (the Act).

Submissions were made by counsel on the applicant's behalf to the effect that having been cleared of the charges of professional misconduct by the committee, the council had no power to impose any sanction upon him or to invoke any of the powers contained in the Act. Further, it was submitted that even if the Act did permit the council to take any steps under the specific sections, to do so would be to effectively reverse the finding of the committee that had been in the applicant's favour.

Mr Justice Kelly said that the council decided to invoke its powers pursuant to section 47 of the Medical Practitioners Act 1978 advising the applicant to take certain professional steps and also pursuant to section 48 of the said Act, attaching certain conditions to the retention of the applicant's name on the General Register of Medical Practitioners maintained by the council under the Act. The council instructed the applicant that under section 47 of the Act he could within 21 days of their decision, apply to the High Court for cancellation of it. The trial judge noted that the applicant did not avail of this statutory entitlement, but applied, and was granted leave to commence judicial review proceedings. Mr Justice Kelly said that in effect the applicant was seeking a declaration that the decision made by the medical council was ultra vires, void and of no effect. Having recited the relevant sections of part V of the 1978 Act, Mr Justice Kelly outlined the applicant's complaints. He said that the applicant contended that in making its decision, the council purported to act pursuant to sections 47 and 48 of the Act. The applicant claimed that in doing so it acted outside the powers conferred under those sections in circumstances where he had been found not guilty of professional misconduct. It was contended that in the absence of a finding of professional misconduct, there was no power to do any of the things that the council purported to do by its decision. The applicant also contended that under these circumstances the only entitlement that the council had under the Act was to receive the report of the committee. The applicant further contended that the council acted ultra vires in purporting to consider publication of its decision when it was expressly prohibited from doing so in the absence of consent of the applicant, pursuant to section 45(5) of the Act. Finally, he contended that the imposition of the conditions on him means that compliance can only be enforced by erasure or suspension from the register and the power of the council to do this was contingent upon a finding of professional misconduct by the committee.

Mr Justice Kelly said that the council denied all contentions forwarded by the applicant. The council concluded that not only was it entitled to but also it ought to invoke the powers pursuant to the provisions of section 47 and 48 of the Act. It did so because of the concern of the committee and the council about aspects of the applicant's care for patients having regard to the evidence presented to the committee. The council contended that it did not ever seek to erase or suspend the registration from the register of any medical practitioner unless there is first a determination of either professional misconduct or unfitness to engage in the practice of medicine. The respondent pointed out that even in circumstances where section 47 is utilised by the council any conditions which it seeks to attach to the retention of a doctor's name on the register cannot be attached unless and until there is an invocation of the High Court either by the doctor affected or by the council before such a decision becomes final and binding.

Mr Justice Kelly noted that both sides referred to two decisions of Mr Justice Finlay. One was given in the case of In Re M, a Doctor [1984] IR 479 and the other in M v The Medical Council and the Attorney General [1984] IR 485. He said that both cases related to the same doctor. In the former case, Mr Justice Finlay, in the course of his review of the provisions of part V of the Act, said that upon completion of the inquiry, the committee reported to the council, which considers the report. He said that if the committee have found the practitioner to be guilty of professional misconduct, the council may inter alia under section 47 decide to attach such conditions as it thinks fit to the retention in any register of a person whose name is entered there and in addition to or in substitution for any other powers, it may advise, admonish or censure the practitioner in relation to his professional conduct.

Mr Justice Kelly noted that considerable emphasis had been laid by counsel for the applicant upon the statement of Mr Justice Finlay to the effect that before a power can be exercised under section 47 of the act, there must be a finding by the committee that the medical practitioner has been guilty of professional misconduct. However, Mr Justice Kelly said that a few months later when Mr Justisce Finlay decided the second of the two cases, he again considered the provisions of the 1978 Act. On this occasion he said that upon examining the provisions of the section 47, he was of the opinion, following an inquiry and report by the committee, irrespective of the precise findings of that inquiry and report, that the council may attach such conditions as it thinks fit to the retention in the register of a person whose name is entered therein or advise, admonish or censure such person in relation to his professional conduct. Mr Justice Kelly noted that the views expressed in this decision did not sit comfortably with views expressed in his earlier decision.

Mr Justice Kelly said that the principal question to be answered was could sections 47 and 48 be applied in the absence of a finding of guilt? He noted that neither section required as a condition precedent to their being acted upon by the council a finding adverse to a medical practitioner who had been inquired into an reported upon by the committee. All that was required for the council to utilise the sections was that an inquiry is held and a report made by the committee pursuant to section 45 of the Act. He continued that to support the contention of the applicant the words that would have to be read into both sections would be to the effect that the sections would only operate following a guilty finding being made. He said that in his view there were sound reasons for not reading in such words.

Mr Justice Kelly contrasted sections 47 and 48 with the immediately preceding section, which expressly provided that before the powers of the ouncil contained in that section could be exercised, there must be a finding of the committee of professional misconduct or unfitness to engage in the practice of medicine because of physical or mental disability. He said that if the legislature had intended sections 47 and 48 to be operated in similar circumstances to section 46, it would have expressly said so. Referring to the two decisions of Mr Justice Finlay, Mr Justice Kelly said that in the first case, there was no basis for indicating that the powers under section 47 of the act could only be operated in the circumstances where the committee has found the practitioner to be guilty of professional misconduct. He pointed out the inconsistency of this statement with the views expressed by the same judge in the later case of M v The Medical Council and the At- torney General, as above mentioned. The trial judge said that he proposed to follow the later of the views expressed by Mr Justice Finlay P, since they were wholly consistent with the express terms of the statutory provisions.

Mr Justice Kelly said that there was a further reason, which fortified the view that he had taken of the provisions of section 47 and 48. He said that it was quite clear from the wording of section 45(3) of the act that the committee was obliged to embody its findings in a report which it made to the council. He said that the legislature clearly envisaged that the committee was obliged to call the attention of the council to matters which, although not pertinent to the question of misconduct or fitness to practise by reason of physical or mental disability, nonetheless had implications for the protection of the public and the public interest. He said that this requirement in section 45(3)(c) and the interrelationship between that and sections 46, 47 and 48 and the express terms of each of these sections made it clear that parliament in passing the act, wished to enable sections 47 and 48 to be operated by the council in the absence of a finding of guilt by the committee. He said that the clear legislative intent was to enable the council to operate sections 47 and 48 so as to deal, inter alia, with the other matters in relation to the registered medical practitioner which the committee thought fit to include in its report. He said that that is what it did, and in his view did so within jurisdiction.

Mr Justice Kelly addressed the issue of the concerns of the council with the public interest. He disagreed with the contention forwarded on behalf of the applicant that the provisions of section 51 of the Act addressed in a complete and full way any of the concerns the council may have concerning a registered medical practitioner vis-a-vis the public interest. He said that this section was reserved for exceptional cases where a doctor had to be suspended from practice because it was in the public interest to do so. He said that there were cases where the council desired to bring about an improvement in the standards of an individual practitioner, without invoking the hardship of the provisions of section 51. He concluded that sections 47 and 48 were much better designed in ordinary cases to bring about the desired result. Counsel for the applicant argued that by recording the conditions imposed by the council on the register, they were in breach of section 45(5). This section requires the consent of the person who has been the subject of enquiry to any publication of the findings of the committee or the decision of the council, unless there has been a finding of guilt concerning professional misconduct or unfitness to engage in the practice of medicine. Mr Justice Kelly agreed with the respondent that this contention was premature as there cannot be any question of attaching conditions to the applicant's retention on the register unless and until there was a hearing and determination by the High Court that such condition should be attached.

Mr Justice Kelly said that the argument made concerning damage to the applicant's reputation by the attachment of such conditions was not made out. He reiterated Mr Justisce Finlay's views in M v The Medical Council and the Attorney General, where he held that in the case of a person practising medicine, the public have a clear and identifiable interest to be informed of a responsible view reached by its colleagues to his standard of conduct of fitness.

Mr Justice Kelly concluded that the council did not act ultra vires in its decision and consequently it acted within jurisdiction and it was entitled to make the decision that it did.

Solicitors: Hayes and Sons (Dublin) for the applicant; William Kennedy (Dublin) for the respondent.