Judgment Title: Miggin [a minor] v H. S. E. & Anor
Composition of Court:
Judgment by: Hanna J.
Status of Judgment: Approved
Neutral Citation Number:  IEHC 169
THE HIGH COURT
2008 565 P
LUKE MIGGIN (A MINOR, SUING BY HIS MOTHER AND
NEXT FRIEND EMILY MIGGIN)
HEALTH SERVICE EXECUTIVE AND MICHAEL GANNON
JUDGMENT of Mr. Justice Hanna, delivered on Friday 26th March, 2010
The plaintiff in this case brings proceedings by his mother and next friend. He alleges he suffered serious brain injuries during the course of his delivery at the maternity unit at Mullingar General Hospital on the 28th day of February, 2006. The plaintiff says that, at all material times, he was under the care both of the first defendant’s midwifery and nursing staff and the second defendant, a consultant obstetrician and gynaecologist.
This case comes before me as an appeal from a decision of the Master of the High Court refusing discovery of a transcript of the proceedings before the Fitness to Practice Committee of the Medical Council (“the Committee”) conducted in April, 2008, and concerning a complaint made against the second named defendant as to the conduct and management of the plaintiff’s birth. We are not presently concerned with the detail of what transpired before that committee. I should note, however, that the complaint against the second defendant was not upheld and this carries with it possible implications with regard to the release or otherwise of this transcript to the plaintiff as a consequence of an order of discovery and/or inspection.
Counsel for the plaintiff said that the discovery of the transcript of the said proceedings was essential for the conduct of the plaintiff's case and to create an “equality of arms” between the parties. Counsel for the defendants argued that an order of discovery should not be made against the second defendant Firstly, the transcript of the proceedings was impressed with a statutory privilege. Secondly, although undoubtedly relevant, discovery of the said documentation was not necessary.
The enquiry before the Committee was conducted pursuant to the provisions of the Medical Practitioners Act 1978, (the “Act of 1978”) and in particular, s. 45 thereof. Section 45(1) of the said act provides, inter alia:-
(a) his alleged professional misconduct, or,
(b) his fitness to engage in the practice of medicine by reason of physical or mental disability,
and the application shall, subject to the provisions of this Act, be considered by the Fitness to Practise Committee.”
(5) The findings of the Fitness to Practise Committee on any matter referred to it and the decision of the Council on any report made to it by the Fitness to Practise Committee shall not be made public without the consent of the person who has been the subject of the inquiry before the Fitness to Practise Committee unless such person has been found, as a result of such inquiry, to be -
(a) guilty of professional misconduct . . . .”
A significant feature of the proceedings before the Fitness to Practice Committee was that the said committee, as it was entitled to do under s. 45(6) of the said act directed the plaintiff’s mother to produce the following:-
The plaintiff’s mother attended the hearing before the said committee accompanied by her solicitor. Having completed her evidence, she and her solicitor were requested by the Committee to leave the hearing. An application by her solicitor to remain on, by way of holding a watching brief, was refused. Therefore, the plaintiff's mother and her solicitor are in a state of complete unawareness as to what transpired before the committee, a position which contrasts sharply with that of the second defendant. He has full access to the transcript, the mother's notes, the evidence which was given by the plaintiff’s mother and documents, such as reports (if any) which may have been offered to the committee in defence of the second defendant.
A number of authorities were opened to me. The defendants placed significant reliance upon the decisions of both Costello P. in the High Court and Barrington J. in the Supreme Court in the case of Barry v. the Medical Council and Anor  3 IR 368. In both courts there was clear recognition of the discretion vested in the Committee by the Act of 1978, to decide whether or not proceedings before it were conducted in public or in private. In that particular case, the plaintiff, a medical practitioner against whom complaints had been made to the Medical Council, wished that the proceedings be conducted in public, given what he perceived to be the ruination of his professional reputation hitherto. The Committee determined that it would press on with matters in private and this decision was determined to be intra vires. Among the reasons given by Costello P. were that, given the nature of the complaints against the plaintiff, and the risk that the proceedings might not take place if the hearing were held in public, the interests of justice might be prejudiced and dealing with the matter in private would not offend, inter alia, the provisions of the European Convention on Human Rights.
At pp. 380 to 381 Costello P. says:-
The statute is silent as to whether or not the hearing should be in private or in public but it seems to me that the Committee properly construed the statute by holding that it had a discretion in the matter. Section 45(1) of the Act of 1978 provides that the findings of the Committee and the decision of the Council on any report made to it by the Committee ‘shall not be made public’ without the consent of the doctor, unless the doctor has been found guilty of professional misconduct or unfitness to engage in the practice of medicine. This implies that the proceedings before the Committee and the Council may be held in private. The statute does not prohibit a public hearing and if requested by the doctor it may comply with such a request. Accordingly, a discretion exists. I have already held that there is no obligation imposed by the Constitution on the Committee to hold its sittings in public and accordingly there is no consideration based on the Constitution which would require a construction of the Act otherwise than is to be ascertained by the provisions of the statute itself.”
The present case is unusual in that the applicant, the practitioner against whom the complaints have been made, has demanded that the proceedings be held in public. He has done this, he says, because the case has received so much damaging advance publicity that his reputation as a doctor has been ruined and he would therefore welcome the opportunity to vindicate his character in public.
In these circumstances the only question is not whether the Committee has the right to conduct its proceedings in private but whether it has a discretion to conduct them in public. While the Act contemplates that proceedings before the Fitness to Practise Committee shall be in private it does not require it. I can see no reason why the Committee should not hold its proceedings in public if all parties were agreed and if the Committee itself thought it was the proper thing to do. While therefore the normal procedure before the Committee is to hold its proceedings in private I see no reason why it should not hold its proceedings in public in a proper case. In other words I think the Committee has a discretion in this matter.”
Secondly, it is of interest to note, and I think the parties were in agreement on this, that were the provisions of the Medical Practitioners Act 2007, in force and governing these proceedings, we would not be here, as provision is made therein for the publication of the transcript of the proceedings if the Medical Council (“the Council”) is of opinion that publication is in the public interest. Whereas I would not presume to guess what the Council might do in such purely hypothetical circumstances, I can, however, state that it would be confronted with a persuasive argument to exercise its discretion in favour of the plaintiff.
Here we must deal with the provisions of the Act of 1978 and this case must be decided according to these provisions.
2. In the present case, there is no challenge to the right of the Committee to exercise its discretion to hear the complaint against the second defendant otherwise than in public. Furthermore, a legal challenge has not been made to the decision of the Committee to exclude the plaintiff’s mother and her solicitor from the proceedings after she had concluded giving evidence. Of course, the plaintiff does complain about possible tactical and forensic shortfall resulting from this forced absence, and I am invited to weigh this actuality in assessing where the balance of justice lies in this case.
3. I expressly adopt the rationale of Barr J. in Eastern Health Board v. The Fitness to Practice Committee of the Medical Council and Others  3 IR 399 at p. 428. Under the heading “CONCLUSIONS” he says, beginning at para. 3:-
4. I have been unable to discover any specific statutory provision in Irish law which provides that there is an absolute embargo in all circumstances on the publication of information deriving from proceedings held in camera.
5. There is an established practice at common law recognised in England and in this jurisdiction (see P.S.S. v. Independent Newspapers (Ireland) Ltd. (Unreported, High Court, Budd J., 22nd May, 1995), that the court in proceedings held in camera has a discretion to permit others on such terms as the judge thinks proper to disseminate (and in appropriate cases to disseminate himself/herself) information derived from such proceedings where the judge believes that it is in the interest of justice so to do, due and proper consideration having been given to the interest of the person or persons intended to be protected by the conduct of the proceedings in camera. In given circumstances the judge may find that a crucial public interest, such as the prosecution of crime or the protection of vulnerable children, takes precedence over the interest of the protected person in non-disclosure of the information in question.
6. In considering a conflict between the public interest or the interest of a person seeking disclosure on the one hand, and the interest of an individual in retaining the full benefit of the in camera rule on the other hand, the court is bound by the concept that the paramount consideration is to do justice – see In re R. Ltd.  I.R. 126.”
5. The guiding consideration in evaluating the necessity for discovery is the overriding interest in the administration of justice. Discovery must, of course, be relevant and necessary. Necessary does not connote absolute necessity. The party seeking discovery should show, for example, that he is at a disadvantage in litigating the case by not having sight of documents in possession of the other side. (See Kelly J. in Ryanair plc v. Aer Rianta c.p.t.  4 IR 264). In this case, it is beyond question but that the defendants and, specifically, the second defendant have in their possession documents which could be of considerable forensic assistance to the plaintiff. The transcript of the disciplinary proceedings could reveal matters of great assistance to the plaintiff, for example, in cross examination. The second defendant must gain an advantage by knowing everything that transpired at the said hearing. At the same time, that defendant has in his possession the plaintiff's mother’s own notes of what transpired during that period of time which, no doubt, will be submitted to intense scrutiny at the substantive hearing of this case. The foregoing circumstances can only confer a litigious advantage on the defendants. In Flynn v. R.T.E. and Others  3 I.R. 344, Kelly J. cites Bingham M.R. in Taylor v. Anderton  1 W.L.R. 447 at P 462 as follows:-
If the tribunal is satisfied that it is necessary to order certain documents to be disclosed and inspected in order fairly to dispose of the proceedings, then, in my opinion the law requires that such an order should be made; and the fact that the documents are confidential is irrelevant.’”
7. I must apply a test of proportionality (see Independent Newspapers v. Joseph Murphy Junior  3 IR 566, Clarke J.). In my view, the discovery of the transcript in question in circumstances where it can only be used in the context of a trial where serious allegations of negligence are going to be levelled against the second defendant in any event, is not disproportionate to the second defendant’s right to confidentiality. It does not, in my opinion, abrogate in any way the right of the Committee to conduct its proceedings according to its legally and constitutionally informed discretion. Balancing justice in the specific circumstances of this case, I am of the view that the discovery of the transcript of the proceedings is warranted, limited in use as I've indicated above, and in circumstances where the court can exercise its inherent jurisdiction to police such discovery. I allow the appeal and direct that the Order of the Master of the High Court be amended accordingly.