1. This
matter comes before the Court as a Special Summons brought pursuant to the
Medical Practitioner’s Act 1978.
3. Counsel
for the Parties have agreed that prior to embarking upon the issues which arise
from the Pleadings and the Grounding Affidavits that the Court should consider
what has been described as a Preliminary Issue. That is:
4. Whether
the Plaintiff is entitled to apply pursuant to Section 46 of the Medical
Practitioner’s Act 1978 or otherwise to the High Court for the
cancellation of the decision made by the Defendants on the 9th December 1999.
5. The
facts of the case insofar as they are relevant to the determination of the
issue can be summarised as follows:
6. The
Plaintiff is a medical doctor. Prior to the events which give rise to these
proceedings the Plaintiff was registered as a temporary medical practitioner
pursuant to Section 29 of the Medical Practitioner’s Act of 1978. He was
working as Locum Senior House Officer in the casualty department of Tallaght
Hospital on the 21st December 1998. A complaint was made against the Defendant
by a patient that he was guilty of professional misconduct. On foot of this
complaint the Defendants Fitness to Practice Committee held an enquiry under
Part 5
of
the said Act into these allegations of professional misconduct. The oral
hearing took place on the 22nd November 1999.
7. The
Fitness to Practice Committee furnished a report to the Defendants which came
before them for determination on the 9th December 1999.
8. The
decision of the Council, which was read to the Plaintiff at the meeting on
Thursday 9th December 1999, was communicated to him by letter dated the 10th
December 1999 the relevant part of which reads as follows:
9. The
Council took careful note of the submission which was made on your behalf in
reaching its decision on the question of whether or not sanction should be
imposed. The Council instructs me to inform you that it decided that on
completion of your current period of temporary registration on the 31st
December 1999 the Council will not grant you further periods of temporary
registration prior to the 1st July 2000. The Council further decided to invoke
its powers under the provisions of Section 48 of the Medical
Practitioner’s Act 1978 and to censure you in relation to your
professional conduct.
11. The
reason for the Council’s decision was that the Fitness to Practice
Committee, having found that the facts set out in the notice of enquiry proved
and taking into account the evidence adduced, formed the opinion that you were
guilty of professional misconduct.
13. On
behalf of the Plaintiff Mr. Noonan B.L. submits that Section 46, 47
and
49 of the Act empower the Council to impose sanctions upon a medical
practitioner which are so grave that they constitute an administration of
justice, a function reserved by the Constitution to the courts and that it is
for this reason that any decision under these sections must be approved by the
High Court. Such a decision might be to erase a medical practitioner’s
name from the Register or during a specified duration decide that the
registration of his name in the Register of medical practitioners should have
no effect. Council submits that the Defendant’s decision not to register
the Plaintiff as a
14. On
behalf of the Respondent it is submitted by Mr. McCullagh B.L. that temporary
registered medical practitioners are a special case. They come to this
jurisdiction for the purpose of training. They are subject to limitations which
do not apply to other medical practitioners and that the Act clearly envisages
that a degree of control must be permitted for such trainees.
15. It
is further submitted by Mr. McCullough that while the Plaintiff will find it
impossible to practice in this jurisdiction the decision of
16. Part
3 of the Act provides that there may be three forms of registration. Full
registration, provisional registration or temporary registration.
17. The
provisions for temporary registration are set out in Section 29 of the Act and
in summary such registration is intended for a person who intends to be in the
State temporarily for the purpose of employment in the practice of medicine in
a hospital approved by the Council for the purpose of that section and that
such a person holds a degree, diploma or other qualification which in the
opinion of the Council affords sufficient guarantee that he has the requisite
knowledge and skill for the efficient practice of medicine, has passed an
examination appropriate for obtaining such degree, diploma or other
qualification and possesses a certificate of experience considered by the
Council to be equivalent to that required for formal qualification.
18. Being
so satisfied the Council may temporarily register such person in the Register
for such period as the Council may determine and the Council may extend a
period determined under the Subsection for such further periods as the Council
may determine providing that the aggregate of such periods shall not exceed
five years.
19. The
powers conferred upon the Council are to decide to erase from the Register the
name of a medical practitioner or to decide that during a period of specified
duration the name of the medical practitioner should not have effect. The
medical practitioner then has
20. A
further separate power is given to the Council and that is it may decide to
attach such conditions as it thinks proper to the retention in the Register of
any person’s name. Again the medical practitioner is empowered to apply
to the High Court for the cancellation of that decision.
21. Under
Section 49 if a medical practitioner is convicted in the State of an offence
triable on indictment or outside of the State of an offence which would
constitute an offence triable on indictment if done or made in the State, the
Council may decide that the name of the person should be erased from the
Register. Again the medical practitioner has the right to apply to the High
Court for the cancellation of that decision.
22. Finally
the Council has one further entitlement and that is that it may, following an
enquiry and report of the Fitness to Practice Committee it may,
“advise,
admonish or censure such person in relation to his professional conduct.”
23. I
am satisfied that this is the power which the Defendants exercised in this
case. The relevant part of the notification reads as follows:
24. The
Council further decided to invoke its powers under the provisions of Section 48
of the Medical Practitioner ‘s Act 1978 and to censure you in relation to
your professional conduct.”
25. It
is true that independent and separate from any powers which the Council may
have had under Section 48 it decided that the Plaintiff’s temporary
registration would not be renewed until after the 1st July 2000. I am satisfied
that the Council had such a power which it derived from its obligation to
regulate temporary medical practitioners and not as a power derived under
Section 48.
26. I
am satisfied that when the Council exercises the power under Section 48 alone
and not in conjunction with any of the powers conferred On it by Section 46, 47
or 49 no right is given to the Medical Practitioner to apply to the court
within 21 days to set that decision aside. This is because the sanction of
advice, admonishing and censuring is not of sufficient gravity.