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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> A. (A.) v. Medical Council and Anor [2003] IEHC 611 (28 April 2003)
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Cite as: [2003] IEHC 611
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[2002 No. 91 JR]
Between:
Applicant
Respondent
Notice Party
Judgment of Mr. Justice Aindrias O Caoimh delivered the 28th April, 2003.
The applicant was granted leave by the Supreme Court on the 22nd February, 2002 to apply to this Court for the relief of:
1. An order staying the inquiry being held by the first respondent (hereinafter referred to as `the Council') pursuant to Part V of the Medical Practitioners Act, 1978 (hereinafter referred to as `the Act of 1978') notice of which was served upon the applicant by notice dated the 7t" December, 2001 into allegations of professional misconduct on the part of the applicant insofar as the Fitness to Practice Committee may not proceed to report stage;
2. A declaration that the respondent's failure to provide legal aid to the applicant to enable the applicant to be legally represented at the proposed s. 45 Inquiry to be conducted by the respondent's Fitness to Practice Committee (hereinafter referred to as `the Committee') at which the applicant will be charged with professional misconduct, constitutes a failure on the part of the respondent to provide fair procedures to vindicate the applicant's right to his good name and the applicant's right to earn a livelihood;
3. A declaration that Part V of the Act of 1978 and in particular the statutory power granted to the respondent to conduct inquiries into the fitness to practice of any medical practitioner requires the respondent in the conduct of such inquiry, to conduct the inquiry in a manner which is fair and in accordance with the principles of natural and constitutional justice and that such conduct would require that any person brought before such inquiry would be legally represented and that if such person is unable to afford such representation that an onus falls upon the respondent to provide such person with legal representation or with the means to procure such legal representation;
4. A declaration that the failure of the respondent to provide the applicant: with the means by which he may be legally represented at the disciplinary inquiry being conducted by the Committee constitutes a breach of the applicant's constitutional rights and in particular the applicant's constitutional rights to his good name and to earn a livelihood.
The grounds upon which the applicant was given leave to seek the above relief are:
Grounds upon which Relief is Sought:
1. That the Applicant has been given notice by letter dated the 7th day of December, 2001 that the Respondent pursuant to the powers conferred upon it by the provisions of the Medical Practitioners Act, 1978 through its Fitness to Practise Committee intends to conduct an Inquiry into allegations of professional misconduct on the part of the Applicant which said inquiry is scheduled to commence on the 20`x' day of February, 2002.
2. That the Applicant is impecunious and currently unemployed and that this known and has been known to the Respondent for a number of years.
3. That in the circumstances the Applicant is unable to afford legal representation and will in the circumstances be unrepresented at any such Disciplinary Inquiry.
4. That the Applicant would be in jeopardy, if an adverse finding were made against him by the Respondent's Fitness to Practise Committee, of being refused temporary registration pursuant to the provisions of Section 29 of the Medical Practitioner's Act, 1978.
5. That the Applicant would be in jeopardy, if adverse findings were made against him, by the Respondent's Fitness to Practise Committee, of being prevented from practising medicine in this jurisdiction and in other countries, including in his native Pakistan and would therefore be unable to pursue his career as a doctor.
6. That the Applicant's constitutional rights to his good name and to earn a livelihood are in jeopardy by reason of the Respondent's decision to conduct an Inquiry into allegations of professional misconduct on the part of the Applicant.
7. That the principles of natural and constitutional justice require that the Applicant be legally represented at the proposed Inquiry.
On the 13th May, 2002 the applicant was given liberty to amend his grounding statement by extending the relief sought to include the following relief.
(a) A declaration that s. 56 of the Act of 1978 permits the respondent to provide or cause to be provided legal representation or sufficient means so as to enable the applicant to procure legal representation at the hearing of the inquiry pursuant to Part V of the Act of 1978, notice of which was served on the applicant by notice dated the 7th December, 2001 into allegations of professional misconduct on the part of the applicant;
(b) In the alternative, a declaration that insofar as the provisions of Part V of the Act of 1978 do not permit the respondent to provide legal representation or any means so to procure legal representation to the applicant the same are invalid having regard to the provisions of the Constitution.
At the time of the making of this order the Attorney General was joined as a notice party to these proceedings.
The application to this court is grounded on an affidavit of the applicant's solicitor Mr. Thomas J. Colgan who refers to the background to this case, which relates to two complaints of sexual assault on patients alleged against the applicant which resulted in a criminal prosecution and a trial which concluded with a verdict of not guilty being returned in January, 1999. The applicant had been on remand in custody pending the outcome of the said trial. He thereafter sought to continue his medical practice and career as a medical doctor and sought to renew his application for temporary registration under the provisions of the Act of 1978. However the applicant was then informed that the Council, through the Committee, had decided that there was a prima facie case for holding an inquiry into matters concerning the applicant's conduct, pursuant to s. 45 (3) of the Act of 1978. This inquiry was due to be held on the 14th March, 2000 but on the previous day he applied to this Court for leave to institute proceedings for judicial review restraining the holding of the said inquiry and at the same time the applicant sought an injunction restraining the holding of the inquiry pending the hearing of the said judicial review proceedings.
The applicant essentially relied on his earlier acquittal on the charges of assault against him in seeking inter alia declaratory relief that it was not open to the respondent to revisit the matter the subject of the criminal proceedings. On the 1 lth October, 2001, this Court restrained the respondent from inquiring into allegations that the applicant had been guilty of sexual assault, which was the subject matter of the criminal charges against the applicant, but refused the applicant the relief seeking to restrain the inquiry into the applicant's alleged conduct at the time of the events resulting in the criminal charges against him.
Thereafter the Council sought to reactivate the inquiry in question and the hearing of same was set for the 20th, 21St and 22nd days of February, 2002 at the offices of the Council. In December, 2001 the applicant's solicitors drew to the attention off the solicitors for the respondent that the applicant would require legal representation at the hearing and that he would be unable to afford such legal representation. In response it was indicated that the Council was not in a position to make available financial and/or legal aid and was not in a position to provide legal representation for the applicant.
Mr. Colgan says that the applicant is impecunious and is in receipt of social welfare payments and he says that he would not be in a position to afford legal representation at the proposed inquiry. Mr. Colgan says that adverse findings against the applicant could have profound results. He would be refused temporary registration within the State and that the Council could, and in all probability would, make available the findings of the Committee to other Medical Councils throughout theworld. He says that in the circumstances and in all likelihood the applicant would be prevented from practicing medicine despite the fact that he is a fully qualified medical practitioner in his native Pakistan. It is suggested that the applicant has only moderately proficient English.
Two affidavits of verification have been sworn by the applicant himself. He says that he has attempted to conduct his own defence at the inquiry but has not achieved same due to the fact that his proficiency in English is limited and he finds accents particularly difficult.
A statement of opposition has been filed on behalf of the Council in which the following grounds are advanced:
1. The applicant was notified by letter dated the 28th October, 1999 and then by notice of inquiry dated the 21St February, 2000 of the intention of the respondent to conduct through its Fitness to Practice Committee an inquiry into alleged professional misconduct on the part of the applicant. In due course, the date for the hearing of that inquiry was fixed for the 14th March, 2000. On the 13th March, 2000, in proceedings entitled "The High Court No. 120 JR Between A. A., Applicant and the Medical Council, Respondent", (the first judicial review 'proceedings) the applicant applied for and obtained leave to apply for judicial review and for an ex parte order restraining the respondent from conducting the inquiry until the determination of the first judicial review proceedings. In the first judicial review proceedings, the applicant sought relief that is similar to that sought in the present proceedings, but on grounds that are entirely different to those upon which he relies in the present proceedings. The first judicial review proceedings were determined on the 11"' October, 2001 and (save in one respect) the applicant did not obtain the relief that he sought. The notice given to the applicant by letter of the 7th December, 2001 was therefore merely a notice of a date on which it was proposed to hold the inquiry, notice of intention to hold the inquiry itself having been given as long ago as the 28th October, 1999 or the 2 l 't February, 2000.
2. It is denied that the applicant would be placed in jeopardy by any or any adverse findings made by the respondent's Fitness to Practice Committee. Furthermore, any or any possible consequences of the inquiry for the applicant and his ability to practice medicine, either within or outside the jurisdiction, should not be a bar to the inquiry proceeding: the respondent has a duty to conduct inquiries pursuant to Part V of the Medical Practitioners Act 1978. It is in the public interest that such inquiries are conducted with a view to ensuring that the highest possible standards are maintained in the medical profession.
3. It is denied that the applicant is impecunious and/or currently unemployed. It is denied that the applicant is unable to afford legal representation or that his circumstances alleged by him will reasonably lead or should reasonably have led to his being without legal representation at the said inquiry. It is furthermore denied that these matters are considerations relevant to the issues to be heard and determined by the Fitness to Practice Committee.
4. The respondent is a body incorporated by statute, namely the Medical Practitioners Act, 1978. It has the power to regulate its own procedures but must act within the powers granted to it under the said Act. It is obliged pursuant to Part V of the said Act under circumstance such as those that have arisen in the present case to conduct an inquiry into the allegations of professional misconduct that have been made against the applicant. Neither Part V of the Act nor s. 56 thereof nor any other provisions permit the respondent to grant legal aid or legal representation to a person whose conduct is the subject matter of an inquiry pursuant to Part V and the respondent does not have the power to grant same.
5. The Fitness to Practice Committee has at all time the guidance and assistance of a legal advisor who sits with the committee but is not a member of the committee. Part of the function of the legal advisor is to ensure that inquiries are conducted in accordance with the rules of law, fair procedures and natural and constitutional justice. That function applies in particular in cases where the practitioner is not legally represented.
6. The nature of the inquiry, the nature and status of the respondent and the Fitness to Practice Committee and the circumstances of the case generally are such that the respondent is both entitled to and obliged to proceed with the hearing whether or not the applicant is legally represented.
7. It is denied that the applicant's constitutional rights to his good name, to earn a livelihood, to fair procedures or to natural and constitutional justice are in jeopardy by reason of the respondent's decision to conduct an inquiry into allegations of professional misconduct on the part of the applicant.
8. Neither the applicant's constitutional rights to his good name, to earn a livelihood, to fair procedures or to natural and constitutional justice require that this inquiry can be conducted only if the applicant is offered legal aid or is legally represented.
9. It is denied that insofar as the provisions of Part V of the Medical Practitioners Act, 1978 do not permit the respondent to provide legal representation or any means so as to procure legal representation to the applicant, that the same are invalid having regard to the provisions of the Constitution.
10. Further and/or in the alternative and without prejudice to the foregoing, the respondent will contend at the hearing herein that the court should exercise its discretion against granting the relief sought on the grounds that the applicant is outside the limits prescribed by Order 84 Rule 21 of the Rules of the Superior Courts and is otherwise guilty of gross, inordinate and inexcusable delay in bringing these proceedings. The grounds for this application first arose on or before the 28th October, 1999 or at the latest, the 21St February, 2000. Even on the applicant's case, they arose on the 7th December, 2001 at the latest. The application for leave to apply for judicial review was not made until the 19th February, 2002, the day before the inquiry was due to commence.
11. Further or in the alternative, the respondent will contend that the court should exercise its discretion against granting the relief on the grounds that the conduct of the applicant amounts to an abuse of the process of the court, and is unreasonable, unjust and contrary to fair procedures. In particular, the respondent will rely upon the failure by the applicant to raise the issue of legal aid and/or legal representation during the first judicial review proceedings, the circumstance described in the next preceding paragraph, and the fact that these proceedings are the second such in which the applicant has applied at the last moment for leave to apply for judicial review.
An affidavit of verification has been sworn by Mr. Brian Lee, Registrar of the Council in which he traces the history of the proceedings and the fact that the inquiry commenced by the Committee would continue. He refers to the fact that the issues raised in these proceedings were not raised by the applicant in the first judicial review proceedings taken by him. He contends that this is unreasonable and unjust. Reference is made to the fact that the applicant's grounds were present on the date of the decision on the earlier proceedings on 11th October, 2001.
Mr. Lee refers to the respective roles of the Council and the Committee in the context of Part V of the Act of 1978. He refers to the role of the Legal Assessor who sits to assist the Committee to ensure that the rules of evidence are adhered to and is astute to ensure that no unfair advantage accrues to an unrepresented practitioner. He stresses that the Committee is primarily concerned with issues relating to medical practice rather than legal issues.
Mr. Lee refers to the fact that at the time of the alleged misconduct the applicant was a temporarily registered doctor and that a doctor is granted temporary registration only for such periods as he is actually in employment and the applicant is accordingly not on the register at all. He refers to the fact that if there is a finding of professional misconduct the applicant cannot be erased or suspended from the register and conditions cannot be imposed on his registration. He refers to the fact that temporary registration is designed largely for training purposes only and is in any event subject to a maximum time limit. On this basis he contends that the jeopardy to the applicant in Ireland of a finding of professional misconduct is a limited one only. For the most part Mr. Lee's affidavit consists of argument.
Submissions
The applicant's primary submission relates to the interpretation of Part V of the Act of 1978 and whether in its terms it precludes the Council from contributing to the costs of the legal representation of the applicant. It is submitted that if this court were to hold that the Council was not precluded from making such a contribution, even upon an ex gratis basis, then the Council would be required to consider the applicant's application for assistance.
It is submitted that any complaint made on behalf of the Council to the effect that as a result of such relief being granted the evidence already taken over many days would have to be reheard, must be laid exclusively at the door of the Council and is a result of the decision not to postpone the current hearing either when the applicant made application for judicial review before the High Court or more particularly when the Supreme Court gave the applicant leave to seek judicial review. It is pointed out that at that stage only one day's evidence had been taken and a conscious decision had been taken by the Committee to continue the taking of evidence and having adopted that approach it is submitted that the Committee must take responsibility for having altered the facts on the ground.
Counsel has referred this Court to transcripts of the hearing to illustrate what is stated to be the applicant's inability to follow the proceedings or understand the legal import of what was going on.
Counsel refers this Court to the provisions of ss. 6, 13 (8) and s. 15 of the Act of 1978 and it is submitted by reference to same that the Minister for Health and Children (`the Minister') has extensive powers both to make regulations in respect of matters under the Act and also in relation to the nomination of members of the Medical Council and that he may in his discretion declare any power conferred on the Council as being exercisable only with his consent.
Counsel submits that the Council is an emanation of the State and it performs a function that would otherwise fall to be determined by the Minister, namely that of ensuring that only properly qualified doctors practice medicine in the State. Counsel refers to the judgment of Finlay P. in M. v. Medical Council [1984] I.R. 485 and in particular to that part of his judgment at p. 493 and 494 where he stated:
"When the Committee propose to hold an enquiry, the person who is the subject of it must be informed of that fact and of the nature of the evidence proposed to be considered at it, and he must be given a full opportunity of being present at the hearing and being represented and heard. The registrar of the Council, or any other person with the leave of the Committee, may present the evidence at the enquiry. For the purpose of holding the enquiry the Committee have all the powers, rights and privileges vested in the High Court in respect of the enforcement of the attendance of witnesses and their examination and the compelling of the production of documents and dealing with contempt of the enquiry. Witnesses before the enquiry have all the immunities and privileges of witnesses before the High Court. On completion of the enquiry, the Committee report to the Council specifying the nature of the application, the evidence given before them and any other matters in relation to the registered medical practitioner which they may think fit to report as regards the alleged professional misconduct, and the fitness or otherwise of the practitioner to engage in the practice of medicine."
In that case Finlay P. found that the relevant provisions of the Act were not invalid having regard to the provisions of the Constitution, the claim having been made that the Council was conducting the administration of justice. He also found that apart from the right and obligation to hold an enquiry itself, the only powers of the Committee which could be said to be final and in a sense binding were the publication of a finding by the Committee of misconduct or unfitness to practice and the Council's power to admonish or censure a practitioner. He found that in any event these functions being limited in nature would come within the exception provided by Article 37 of the Constitution, even if they constituted the administration of justice.
Counsel points out that it was also submitted in that case that there was a want of fair procedures in that in an application to the High Court an appellant would have a badge of guilt from the findings of the Committee. The President found that there was no unfairness. He observed, however at p.499, in relation to the, finding of the Committee:
"In my view, there can be no fundamental distinction in principle between what might be described as an implication or imputation arising from such a finding and whatever implication or imputation arises from a decision on the part of the Director of Public Prosecutions to prosecute an accused person in respect of a specified charge or charges."
Counsel submits that this view does not appear to take into account the final nature (from the point of view of the applicant) of any decision of the Committee. Counsel submits that in any event, the view of the Director of Public Prosecutions that a person should face charges only amounts to a view that there is evidence which warrants being placed before the Court. It does not amount to a view on behalf of the Director that a particular individual is guilty or not and it does not have the status of an unappealable determination of the Committee that an individual has been guilty of professional misconduct.
While in that case Finlay P. rejected an assertion that there was a failure to vindicate the good name of the practitioner in the Committee publishing an adverse report on the basis that the Committee had held a proper inquiry at which the practitioner had full rights of audience and representation and if the Council held that the practitioner's name should be erased from the register or that the registration should be suspended or that conditions be attached to its retention, the practitioner had a right to a full hearing in public before the High Court and the verdict would necessarily and completely vindicate the practitioner's good name if he were successful. It is submitted in the instant case that these considerations do not apply as the applicant has not been accorded a right to representation as, he has no representation and he cannot obtain any. Furthermore a finding of professional misconduct against the applicant cannot be appealed to the High Court.
Counsel submits that the President in that case would not have mentioned the right of a practitioner to legal representation were it not considered relevant to a consideration of fair procedures.
Counsel refers to the presumption of constitutionality of statutes and in particular the passage from the judgment of the Supreme Court in McDonald v. Bord na gCon [1965] I.R. 217 at p. 239 where it was stated by Walsh J. in delivering the judgment of the Court:
"One practical effect of this presumption is that if in respect of any provision or provisions of the Act two or more constructions are reasonably open, one of which is constitutional and the other or others are unconstitutional, it must be presumed that the Oireachtas intended only the constitutional construction and a Court called upon to adjudicate upon the constitutionality of the statutory provision should uphold the constitutional construction. It is only when there is no construction reasonably open which is not repugnant to the Constitution that the provision should be held to be repugnant."
Counsel submit that the applicant's claim in regard to the invalidity of Part V of the Act of 1978 only arises should the applicant fail to establish that the correct interpretation of the Act is such to allow the Council to provide the assistance in order to enable the applicant obtain legal representation.
Counsel refers to the judgment of the Supreme Court in East Donegal Co-Operative v. Attorney General [1970] I.R. 317 where Walsh J stated at p. 341: "...the presumption of constitutionality carries with it not only the presumption that the constitutional interpretation or construction is the one intended by the Oireachtas but also that the Oireachtas intended that proceedings, procedures, discretions and adjudications which are permitted, provided for, or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice. In such a case any departure from those principles would be restrained and corrected by the Courts."
Counsel refers to the judgment of Gannon J. in M. C. v. Legal Aid Board [1991] 2 I.R. 43 where at p. 55 he stated:
"The fact that [the applicant] is the respondent to a petition of nullity of her marriage does not create any duty to her personally by any of the respondents. Whether her marriage is a valid marriage or is no marriage does not involve the State or any agency of the State. The State does provide the forum for resolution of such disputes, namely the courts, but without any obligation on her or on the petitioner to have recourse thereto. By contrast criminal matters may be resolved only in the courts as the investigation of crime is a matter of public duty. The proceedings by way of petition is the invocation of the jurisdiction of the courts administering justice to resolve that private civil dispute in accordance with law. The existence of that private civil dispute does not confer any duty on the State nor on any of the respondents to either of the parties thereto either under the Constitution or at law. The duty of administering justice and adjudicating by due process does not create any obligation on the State to intervene in any private civil litigation so as to ensure that one party is as well equipped for their dispute as is the other. The fact that the existence of fundamental personal rights is expressly recognized by the Constitution does not impose on the State any duty to intervene in aid of a party involved in any private civil dispute in relation to any such personal rights."
Based upon this counsel submits that the current hearings before the Committee are to be distinguished from a private dispute.
Counsel refers to Re Haughey [1971] I.R. 217 in regard to the rights of a person whose conduct is impugned as part of the subject matter of the inquiry to be afforded reasonable means of defending himself to include that to cross examine by counsel his accuser or accusers. In addition counsel refers to Flanagan v. University College Dublin [1988] I.R. 724 in support of his submission. In addition counsel refers to The State (Healy) v. Donoghue [1976] I.R. 325 at p.350 where O'Higgins C.J. stated:
"The requirements of fairness and of justice must be considered in relation to the seriousness of the charge brought against the person and the consequences involved for him. Where a man's liberty is at stake, or where he faces a very severe penalty which may affect his welfare or his livelihood, justice may require more than the application of normal and fair procedures in relation to his trial. Facing, as he does, the power of the State which is his accuser, the person charged may be unable to defend himself adequately because of ignorance, lack of education, youth or other incapacity. In such circumstances his plight may require, if justice is to be done, that he should have legal assistance. In such circumstances, if he cannot provide such assistance by reason of lack of means, does justice under the Constitution also require that he be aided in his defence? In my view it does."
It is submitted that the consequences to the applicant's livelihood are just as serious as if it were occurring in a criminal court and on this basis it is submitted that the principles recognised by O'Higgins C.J. are appropriate to the facts of the instant case.
Counsel submits that the mere willingness to permit legal representation is not enough and that if the person concerned cannot reasonably afford such representation he must be assisted by the State in obtaining representation.
Counsel refers to Kirwan v. Minister for Justice [1994] 2 I.R. 417 , Pett v. Greyhound Racing Association [1969] 1 Q.B. 125 and R. v. Secretary of State for the Home Department, ex p. Tarrant [1985] Q.B. 51 and Bachinsky v. Sawyer (1973) 43 D.L.R. (3` d) 96. Counsel refers to Gallagher v. Revenue Commissioners [1991] 2 I.R. 370 where Blayney J. recognised the right of the applicant, who was facing charges of serious misconduct, to legal representation, having regard to the serious consequences for the applicant of a finding against him.
In Kirwan v. Minister for Justice [1994] 2 I.R. 417 Lardner J. held that there was a duty on the executive to provide legal aid in circumstances where the then schemes did not extend to representation or assistance to make representations to an advisory committee to the Minister for Justice which advised the Minister in relation to whether persons found guilty but insane should be released from detention. In that case it was held by Lardner J., in declaring that the applicant was entitled to such legal aid as was necessary to enable him effectively to present his application and submissions, 1.) That applications for their release made by persons detained pursuant to the provisions of s. 2(2) of the Trial of Lunatics Act, 1883, were required to be determined by the executive by an inquiry into all the circumstances in accordance with the requirements of fair and constitutional procedure. 2.) That an applicant who was without the requisite means to prepare his case and present it to the advisory committee was necessarily, as a matter of fairness, entitled to legal aid to enable him to do so. 3.) That accordingly, if none of the existing schemes of legal aid included within their scope applications such as the one in issue, then it was incumbent upon the executive under the Constitution to afford such legal aid as was necessary to enable the applicant to make his application in an effective manner. It was held that it was impossible, on the evidence, to determine whether the applicant required the assistance of junior and senior counsel, but that the services of a solicitor, at least, would be required to enable him to present his case to the committee.
On behalf of the respondent it is submitted by Mr. Eoin McCullough S.C. that the applicant is too late in making this application and that the court should reject the application in its discretion, secondly that there is no entitlement of the applicant to legal aid and if the court does not accept this as correct, thirdly there is no obligation on the Council to provide for legal aid.
With regard to the delay of the applicant counsel traces the history of this case back to the initial notification on the 28th October, 1999 of the intention to hold an enquiry. Counsel refers to the fact that the applicant pressed for an early enquiry at that time and the formal notice of the enquiry issued on the 21St February, 2000 to commence on the 14th March, 2000. On the 13th March, 2000 the applicant applied to the High Court for leave to institute judicial review proceedings and sought an interim order restraining the enquiry, which resulting in leave being granted in those proceedings which proceeded until the judgment of this Court on the 11th October, 2001. On the 7th December, 2001 the applicant was informed of a new date for the inquiry and on the 24th January, 2002 the applicant through his solicitor raised the issue of his impecuniosity which was replied to by letter on behalf of the Council on the 1St February, 2002 in circumstances where the hearing was due to take place on the 20th February, 2002 and to continue on the following days.
The applicant applied for leave herein on the 19th January, 2002, which application was refused in the first instance by this Court (Kelly, J.) but the applicant was given leave by the Supreme Court on the 22"d February, 2002 at which stage the enquiry had commenced.
Counsel refers to De Roiste v. Minister for Defence [2001] 1 IR 190 and in particular the judgments of Denham J. and Fennelly J. in that case.
Counsel stresses the applicant's requirement to move promptly and in the event of failure to do so and in any event within the time permitted under O. 84 r. 20 of the Rules of the Superior Court, the obligation to provide good reasons why the time should be extended by this Court.
Counsel submits that there has been no change in circumstances since the applicant first obtained leave to institute proceedings for judicial review in February, 2000 and in the circumstances it is submitted that the applicant has failed to show good reason why he did not move for the relief herein two years previously at the time when the earlier judicial review proceedings were instituted.
Counsel submits that the applicant cannot rely on the recent correspondence from the 24th January, 2002 to create a new starting date for the purposes of O. 84 r. 20 of the Rules of the Superior Courts.
Counsel submits that in the absence if any explanation for the delay the applicant's case must fail in limine.
Counsel submits that even if the applicant afforded an explanation the delay is a factor upon which this Court can exercise its discretion. Counsel submits that if the applicant were to be successful in this application that this would result in the whole enquiry having to proceed afresh once again. Counsel submits that the delay has a prejudicial effect on the witnesses in question. Counsel submits that the decision taken in February, 2002 to proceed with the enquiry cannot be faulted especially as the High Court initially refused the applicant leave to institute these proceedings. It is submitted that all the prejudice caused by the delay is to be taken into account against the applicant and that this delay should disentitle the applicant to any relief herein.
Counsel submits that if the delay is not such as to formally disentitle the applicant to the relief which he seeks it should be such as to cause this Court to refuse the relief sought in the circumstances. Counsel submits that it is an abuse of process to institute successive judicial review proceedings where they all relate to the same enquiry and the points raised could all have been raised in the first instance. This is a matter which it is submitted should be taken into account in assessing the conduct of the applicant. It is submitted that the conduct in question has resulted in the parties and the Court being subjected to a gross waste of time.
With regard to the substantive issue raised in these proceedings, counsel refers to fact that the applicant was only temporarily registered in Ireland and is not now on the register.
Counsel refers to s. 45 (5) of the Act of 1978 and submits that the applicant can be represented by anyone. Counsel refers to s. .46 which relates to erasure or suspension in which case the matter must come before the High Court and counsel refers to the fact that the applicant is not at such risk in the circumstances of this case. Further counsel refers to s. 47 and in particular sub-s. (3) thereof relating to the imposition of conditions on registration, which do not arise in this case. Counsel refers to s. 48 and submits that the only sanction is to refuse the applicant temporary registration. There is no right of appeal from such a decision. On this basis counsel submits that s. 48 has to be contrasted with s. 46 and s. 47 and submits that the sanction under s. 48 cannot be considered as being of the same gravity as those arising under ss. 47 or 48.
Counsel refers to M. v. Medical Council [1984] I.R. 485 in which it was held that the Council was not engaged in the administration of justice. Counsel submits that the risk to the applicant is a relatively restricted one.
In that case Finlay P. recorded the submissions of the plaintiff as follows at pp. 495 and 496 of the report:
"The plaintiffs three main submissions in this action were:
1. That the powers vested in the Fitness to Practise Committee or in the Medical Council by the statutory provisions which are challenged were powers to administer justice which, having regard to their consequences, could not be considered to be limited functions and, as such, were inconsistent with Article 34, s. 1, of the Constitution and were not saved by the proviso contained in Article 37 of the Constitution.
2. That, even accepting, for the purpose of the submission, my interpretation of the provisions of the Act of 1978 with regard to the onus of proof on the Council in an application by a practitioner to the court under either s. 46 or s. 47, the procedures provided by the Act of 1978 were unfair procedures which were inconsistent with Article 40 of the Constitution in that the plaintiff came before the court carrying a badge, or a finding, of guilt as a result of the decisions of the Committee and of the Council.
3. That the absence from the statutory provisions of a prohibition of the publication of the findings of the Committee in the event of the Committee being of the opinion that the practitioner was guilty of professional misconduct, or unfit to practise medicine, was a failure to vindicate and defend the good name of the practitioner and was inconsistent with Article 40 of the Constitution.
With regard to these issues the President concluded as follows at p. 499:
"I am of the opinion that the powers conferred on either the Council or the Committee under that Act are not judicial powers and that the functions being exercised by them are not the administration of justice. Apart from the right and obligation to hold the enquiry itself, the only powers of the Committee or the Council which could be said to be final and, in a sense, binding are the publication of a finding by the Committee of misconduct or unfitness to practise and the Council's power to advise, admonish or censure a practitioner. Even if it could be said that the publication to the public of a finding by a committee of enquiry of misconduct or unfitness was something affecting the rights of a practitioner within the context of the authorities to which I have referred, or if the same could be said of advising, admonishing or censuring, in my view these would be functions so clearly limited in their effect and consequence that they would be within the exception provided by Article 37 of the Constitution even if (contrary to what I believe to be the true legal situation) they constituted the administration of justice. For these reasons I am satisfied that the first submission made on behalf of the plaintiff must fail.
With regard to the plaintiffs second submission - which is to the effect that there is a want of fair procedure in the application to the High Court by reason of the badge of guilt arising from a finding of the Committee - I am satisfied that the position is as follows. I must apply to this submission the principles laid down by the Supreme Court in East Donegal Co-Operative v. The Attorney General [1970] I.R. 317 and summarised in the decision of the Supreme Court in O'Brien v. Bord na Mona [1983] I.R. 255 at p. 281 of the report in the following words: - "In that case it was held that it is to be presumed that it was intended that proceedings, procedures, discretions and adjudications which were permitted, provided for or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice." Applying this principle to a situation where the application of a practitioner to cancel a decision comes before the High Court to be tried by a judge sitting without a jury, and where (as I have ruled) the onus of proving the entire facts of the matter under enquiry rests upon the Council, I cannot see that there is any want of fair or due procedure arising from the fact that on a previous enquiry, held by a body of persons of the practitioner's own profession, a finding of misconduct or unfitness to practise has been made. In my view, there can be no fundamental distinction in principle between what might be described as an implication or imputation arising from such a finding and whatever implication or imputation arises from a decision on the part of the Director of Public Prosecutions to prosecute an accused person in respect of a specified charge or charges. Therefore, I am satisfied that this submission, based on that particular want of due process or fair procedure, must fail.
Counsel on behalf of the plaintiff, however, also relied, to an extent, upon the failure of the Act to give the practitioner a right to make representations to the Council on the nature of the penalty to be imposed where there has been a finding of misconduct or unfitness to practise. I have already ruled (on the preliminary issue raised by the plaintiff under s. 46 of the Act) that that did not constitute a want of fair procedure. As far as this action is concerned, however, it is only necessary for me to point out that, even if the absence of such a right of representation or audience were held to be a want of fair procedure, the remedy for such deficiency is not something which is prohibited by, or inconsistent with, any provisions of the statute and so, although the deficiency would give to the person affected by it a right to set aside the procedure, it would not form a ground for challenging the constitutionality of the statute."
Counsel refers to the fact that the maximum period of temporary registration of a practitioner is five years in any event in support of the contention that the risk to the applicant is a restricted risk.
Counsel refers to the earlier judgment of this Court in the earlier judicial review proceedings taken by the applicant to the effect that the proceedings before the Committee and the Council are not criminal proceedings and they simply constitute an enquiry under the Act of 1978. In this regard counsel refers to the fact that the proceedings in question are not adversarial in the normal way and counsel refers to the involvement of members of the Council.
Counsel refers to The State (Healy) v. Donoghue [1976] I.R. 325 which recognises a limited right to legal aid in the context of criminal trials. In that case O'Higgins C.J. stated, inter alia, at p. 350 of the report:
"The requirements of fairness and of justice must be considered in relation to the seriousness of the charge brought against the person and the consequences involved for him. Where a man's liberty is at stake, or where he faces a very severe penalty which may affect his welfare or his livelihood, justice may require more than the application of normal and fair procedures in relation to his trial. Facing, as he does, the power of the State which is his accuser, the person charged may be unable to defend himself adequately because of ignorance, lack of education, youth or other incapacity. In such circumstances his plight may require, if justice is to be done, that he should have legal assistance. In such circumstances, if he cannot provide such assistance by reason of lack of means, does justice under the Constitution also require that he be aided in his defence? In my view it does."
Counsel submits that the limited nature of the rights conferred by the Constitution was made clear in The State (O) v. Daly [1977] I.R. 312 where O'Higgins C.J. stated at p.315:
"There is a danger that the decision in Healy's Case may be misunderstood in the sense that it may be regarded as applying to situations and circumstances which were not contemplated. It is worth recalling, therefore, that the decision in that case applies only to the trial of persons charged with criminal offences and not to the earlier or ancillary stages of criminal proceedings."
Counsel refers to the judgment of Gannon J. in K Security Limited v. Ireland and The Attorney General (Unreported, High Court, 15 July, 1977) where he stated with reference to The State (Healy) v. Donoghue [1976] I.R. 325:
"All the judgments delivered in the Supreme Court in that appeal lay emphasis on the constitutional duty of a court undertaking a trial of a person charged with a criminal offence to be vigilant to ensure that the trial is in all respects fair an just.
The several judgments give substantial guidance as to the standards of fairness under the predominant concept of justice to be observed in relation to the particular circumstances of a person appearing before the Court. None of the judgments goes so far as to declare that every person charged with a criminal offence has a constitutional right to have the expense of his defence paid out of State funds. Neither can it be logically or rationally deduced from any of these judgments that every person ho has incurred the expense necessary to secure with the aid of a solicitor and counsel a fair and just trial has a constitutional right to be recouped such expenses out of State funds."
Counsel refers to M. C. v. Legal Aid Board [1991] 2 I. R. 43 where Gannon J. held that there was no duty owed personally to the applicant by the State by virtue of her being a party to civil litigation in a forum provided by the State. The fact that the litigation in which the applicant was involved concerned her personal right to the constitutionally recognised status of marriage did not impose a duty on the State to intervene in such litigation. The adoption of the legal aid scheme did not impose on the State an obligation to provide legal aid to any individual litigant but did impose a duly to ensure that the scheme was administered fairly and fulfilled its purpose. An individual citizen did not have a constitutional right to require that the State provide financial support for civil litigation of a dispute with another citizen.
Based upon this decision it is submitted that the State is not required to provide financial support to citizens appearing before administrative bodies such as the Committee and that a fortiori, still less is the Council itself required to provide such support.
Counsel refers to Corcoran v. Minister for Social Welfare [1991] 2 I.R. 175 in which Murphy J. rejected the applicant's contention that he had a right to legal representation' before a social welfare appeals officer, although the applicant was represented by his solicitor. The applicant sought a declaration that he was entitled to the benefit of legal representation at the hearings and that it was the duty of the Minister to notify him of that right. Murphy J. in refusing the application stated, at pp. 183 and 184:
"No precedent or authority has been produced for the general proposition that a lay tribunal exercising a quasi judicial function must afford to the parties appearing before it an opportunity to procure legal advice and be represented by lawyers. Less still is there any authority for the proposition that the State would be bound to pay for such assistance. In so far as the nature of the issue before the tribunal is a material fact, in determining the procedures to be adopted it must be recognised in the present case that not merely is there an ample right of appeal to an aggrieved party but that there is an unlimited right to re-open the issue "in the light of new evidence or of new facts". Whilst the loss, even the temporary loss, of unemployment assistance may be a matter of great importance indeed, a decision to that effect is not final and can, as I say, be reviewed on the basis of new evidence. In my view it is a bold proposition to suggest that citizens, however limited their education or unfortunate their circumstances, have a constitutional right to free legal aid to argue the inadequacy of their means before a deciding officer or appeals officer under the social welfare code."
Counsel refers to S. v. Landy (Unreported, High Court, Lardner J. 10th February 1993), Kirwan v. Minister for Justice [ 1994] 2 I.R. 417 and Byrne v. Dublin Corporation (Unreported, High Court, O Caoimh J. 12th October 2000). It is submitted that these cases establish that there may be certain non-criminal cases in which fairness requires the provision of legal aid or assistance and that this arises only where the State is a party to those proceedings and where the proceedings are either part of or are directly connected with the process of the court. With reference to Kirwan v. Minister for Justice, counsel refers to the particular features of that case, including the fact that it related to the continued detention in custody of the applicant. Counsel submits that Kirwan v. Minister for Justice was decided on its own special facts and the decision was not extended in the cases of Condon v. C.I.E. (Unreported, High Court, Barrington J., 16 November, 1994), K Security Limited v. Ireland and The Attorney General (Unreported, High Court, 15 July, 1977) or in Corcoran v. Minister for Social Welfare [1991] 2 I.R. 175.
While it was stated in Byrne v. Dublin Corporation at pp.33 and 34 -
"Dublin Corporation may correctly be described as an emanation of the State, and while the considerations which influenced the judgment of Gannon J in the case of C. v. Legal Aid Board [1991] 2 I.R. 43 do not apply to the proceedings taken by Dublin Corporation against the applicant insofar as it is an emanation of the State and the proceedings before the High Court in the case of C. v Legal Aid Board were nullity proceedings in which neither the State nor the emanation of the State was a party, it must be stated, however, that the mere fact that the State or an emanation of the State is a party cannot of itself be such as to render the proceedings such that the party against whom the proceedings are brought is naturally entitled to legal aid. Furthermore, while the uncontroverted evidence before this Court is that the applicant was deemed eligible for legal aid it appears that this is referable to means criteria for legal aid."
Counsel submits that while "emanation of the State" is not defined for the purpose of the judgment in that case, the Council could not reasonably be considered as such. Nor can the Registrar be considered as such. Finally, it is submitted that in none of these cases is there any suggestion that any body other than the Legal Aid Board, or perhaps at very most the State, must provide legal aid or assistance when it is appropriate to do so. It is submitted that there is no suggestion nor can there be any suggestion that an administrative body such as the Council has an obligation to do so.
It is submitted that the enquiry before the Committee has been conducted in accordance with the principles of natural and constitutional justice and in accordance with fair procedures. Counsel stresses that the applicant was aware at all times of the circumstances giving rise to the enquiry and was given prior notice of this and the previous hearing, being furnished with a list of the charges, the witnesses proposed to be called and the nature of the evidence of each witness and was afforded sufficient time in order to prepare and present his defence to the Committee.
Counsel stresses that the powers and jurisdiction of the Committee and the Council are restricted to those set out in the Act of 1978. As the legislation makes no provision for legal aid or assistance it is submitted that the Council does not have power to grant same. It is submitted that s. 56 of the Act of 1978 deals with an entirely different matter, namely the entitlement of the Council to make arrangements with persons or bodies to assist it in a ministerial manner.
It is submitted that the Court should have regard to the fact that there is no evidence that the applicant has at any stage applied for legal aid or that legal aid has been refused, and to the fact that the applicant is legally represented in these proceedings.
Counsel submits that the issues before the Committee are essentially issues of fact and it is submitted that the essential issues are medical matters relating to the circumstances of the internal examination carried out by the applicant.
Counsel submits that the proceedings before the Committee do not involve the administration of justice, that the applicant is only at a restricted risk and that the proceedings before the Committee are not adversarial in nature. It is submitted that the applicant is entitled to have someone other than a lawyer represent him at the hearing as the right to representation is not restricted to legal advisors.
Counsel refers to what he describes as the active role of the legal assessor as representing a further safeguard to the applicant. Counsel refers to the fact that on a finding by the Committee it reports to the Council. It is submitted that a finding against the applicant does not have disciplinary consequences. Counsel stresses that the medical profession is essentially a self-governing profession of which the applicant is a member. On this basis it is submitted that the hearing before the Committee is very different to a criminal trial.
With regard to the alleged disadvantage to the applicant in representing himself before the Committee, counsel stresses that what is at issue are essentially issues of fact, relating to the number of examinations alleged to have been carried out by the applicant on the patients in question and whether he kissed a patient or sought to do so. It is submitted that the essential issues are medical issues. Counsel refers to the notice convening the inquiry insofar as the same indicates the nature of the issues to be inquired into by the Committee.
Counsel submits that one should not confuse a right to legal representation with a right to legal aid. Counsel submits that a right to legal representation does not carry with it a correlative right have the same funded. Counsel submits that while the right of access to the courts has been recognised as an unenumerated constitutional right, it does not entail a correlative right to be funded by the State. Counsel submits that the powers of the Medical Council are limited and do not extend to the provision of legal aid. Counsel refers to Keane v. An Bord Pleandla [1997] 1 I.R. 184 where Hamilton C.J. in the course of his judgment at p. 212 stated:
"The Commissioners are a corporation created by statute and as stated in Halsbury's Laws of England, (4th ed.) vol. 9, para. 133 in the following passage which was quoted by the learned trial judge: 'The powers of a corporation created by a statute are limited and circumscribed by the statutes which regulate it, and extend no further than is expressly stated therein or is necessarily and properly required for carrying into effect the purposes of incorporation or may be fairly regarded as incidental to or consequential upon those things which the legislature has authorised. What the statute does not expressly or impliedly authorise is to be taken to be prohibited."'
As stated by Costello J. as he then was, in the course of his judgment in Howard v. Commissioners of Public Works [1994] 1 I.R. 101 at p. 112:
"It has long been established as a g6neral principle of the construction of the powers of statutory corporations that whatever may be regarded as incidental to, or consequential upon those things which the legislature has authorised, ought not (unless expressly prohibited) to be held by judicial construction to be ultra vires (Attorney General v. Great Eastern Railway Company (1880) 5 A.C. 473 at p.478)."
Counsel refers to the fact that Part V of the Act of 1978 represents a self contained code with no provision for the Council to provide legal aid. It is submitted that this Part cannot be construed as creating a source of independent powers. It is submitted that there is nothing in the Act of 1978 akin to the power to provide legal aid.
On behalf of the Attorney General it is submitted by Mr. Brian Murray of counsel that if the Act of 1978 is construed as containing an express or implied power to grant legal aid then no issue arises as to the validity of the Act in the context of the constitution.
It is submitted on behalf of the Attorney General that the only constitutional entitlement to legal aid arises in the context of criminal proceedings and even if this court does not hold with this submission that the category of cases other than criminal cases cannot extend to the nature of the proceedings at issue in this case and in particular before an inferior body of the nature of the Committee which does not have power to suspend from practice or impose a monetary sanction on the applicant. It is submitted that if on a proper construction of the Act of 1978 no express or implied right to legal aid arises then the issue of double construction of the Act does not arise.
Counsel refers to the nature of the right contended for by counsel for the applicant and to the incongruous nature of the submission insofar as the existence of a right to legal representation and the absence of an obligation to pay for that representation is concerned. Counsel submits that it is not an uncommon feature that a right exists without the obligation on the part of the State to pay for same. Counsel submits that the mere existence of a right does not confer an appurtenant right to have the State pay for same. It is submitted that only if one assumes that there is a right to have the State pay for the provision of a right can it be stated that it is part of the right at issue.
Counsel submits that the categorisation of the role of the respondents has been exaggerated by the applicant. It is submitted that the mere fact that a sanction can be imposed does not result in a right to legal representation.
Counsel refers to M. v. Medical Council [1984] I.R. 485 and the conclusion reached in that case that the respondent was not engaged in the administration of justice. Counsel refers to the fact that the Court recognised in that case that the suspension from the Register required a court order but that a lesser sanction did not require a court order. Counsel submits that the proceedings before the Committee in the instant case are of a different character to orders made by the Court under the Act of 1978.
Counsel refers to the fact that under Article 6 of the European Convention of Human rights the right to legal representation has been limited.
Counsel submits that there is a fundamental misconception in the applicant's case insofar as it is suggested that a right to legal representation entails an obligation on the State to fund such representation. It is submitted that a finding adverse to the reputation of an individual is not equivalent to a finding by a court.
Counsel refers to the fact that Part V of the Act of 1978 makes provision for "Fitness to Practice", that Part VI deals with "Miscellaneous" matters and apart from the power to publish a finding of the Committee or a decision of the Council and the power of the Council to admonish, advise and censure, neither the Committee nor the Council is invested with powers that are final and binding. Only the High Court can impose the sanctions of erasing a practitioner's name from the register, suspending his name from the register or attaching conditions to the register. This occurs following a full hearing (K. v. An Bord Altranais [ 1990] 2 I.R. 396; In Re M., a Doctor [1984] I.R. 479 and Mv. Medical Council [1984] I.R. 485)
It is submitted that the Attorney General's involvement in these proceedings must await a determination by this Court on the scope of s. 56 of the Act of 1978 and whether the Act of 1978 provides for the Council to assist the applicant in the procurement of legal representation.
It is submitted that whether s. 56 can be interpreted as allowing for legal representation and/or the funding of same is a matter for the Council and the Committee in the first instance and ultimately for this Court when they are challenged.
Without prejudice to this submission, it is submitted on behalf of the Attorney General that there is no authority to suggest that a positive constitutional duty rests upon the State to provide legal aid for civil litigants appearing before administrative tribunals or for those who are involved in civil litigation before the courts. Counsel refers to the decision of this Court (Murphy, J.) in Corcoran v. Minister for Local Government [1991] 2 I.R. 175 where consideration was given to the previous decisions of In Re Haughey [1971] I.R. 217, The State (Healy) v. Donoghue [1976] I.R. 325 and Flanagan v. U.C.D. [1988] I.R. 724. Counsel also refers to the decision of The State (O) v. Daly [1977] I.R. 312 and based upon these decisions it is submitted that there is no constitutional right to legal aid in connection with professional disciplinary proceedings and that as a consequence th no issue of constitutional law that arises in the construction of s. 56 of the Act of 1978.
Counsel submits that these proceedings can be distinguished from McDonnell v. Brady [2001] 3 I.R. 588 where the Supreme Court had to consider inter alia s. 3(2) of the Committee of the Houses of the Oireachtas (Compellability, Privileges and Immunity of Witnesses) Act, 1997 (`the Act of 1997') as amended by the Comptroller and Auditor General and Committees of the Houses of the Oireachtas (Special Provisions) Act, 1998 and the question of paying for the costs of legal representation. The proceedings involved an appeal from a decision of this court discharging an earlier stay on the proceedings of the Oireachtas sub-committee on the Mini CTC Signalling Project.
It is submitted that the following comments of Keane C.J. at p. 600 of the report illustrate the differences between s. 56 and Part V of the Act of 1978 and s. 3(2) of the Act of 1997 insofar as the financing of legal representation is concerned:
,,As to the refusal of the sub-committee to pay the costs of the legal representation of the applicant, S. 3(2) of the 1997 Act provides that the reasonable expenses of a person who, pursuant to a direction, attends before a committee or gives evidence to it that the committee considers, in the interests of justice, necessary or expedient for protecting and vindicating the personal and other rights of that person are to be paid out of monies provided by the Oireachtas. The chairman, in his opening statement to the sub-committee, said that the sub-committee had been advised that the extent of the right of persons attending to be paid their expenses and, specifically, whether it included the payment of legal representation was not spelled out in the Act and that the sub-committee had no formal role in the granting of such expenses which, under the legislation, was a matter for the Minister for Finance.
It is not for this court, at this stage of the proceedings, to adjudicate on the correctness of that view in law, any more than it was for the High Court. It is sufficient to say that, if the applicant is found to be entitled, either as a matter of constitutional right or by virtue of the provisions of the 1997 Act, to be paid the costs of legal representation in these proceedings, she will be entitled to an appropriate declaration to that effect which will no doubt be acted upon by the Minister for Finance. It is clearly not, however, a ground on which, at this stage, the entire proceedings of the sub-committee could be stayed. "
Counsel notes that the applicant is not making a case of a right to legal representation per se but is submitting that if this court were to determine that s. 56 and the entire of Part V of the Act of 1978 does not provide for the Council to assist the applicant in the procurement of legal representation that the provisions of Part V would be repugnant to the provisions of the Constitution. Further it is noted that the respondent does not contest the applicant's right to be legally represented before the Committee.
Having referred to the authorities of M. C. v. Legal Aid Board [1991] 2 I.R. 43 and Byrne v. Scally (supra) counsel refers to the views of Casey in Constitutional Law in Ireland where at p.418 he stated inter alia as follows:
"For many would-be litigants the constitutional right of access to the courts may, on grounds of expense, prove theoretical only; the cost of litigation may bar the way more effectively that any statutory limitation period. Though a scheme of civil legal aid has existed since 1986, it has never been capable of meeting all the demands made upon it. An individual who falls outside the scope of that scheme or who is unable to benefit from it by reason of prioritisation given scarcity of resources, cannot fall back on any constitutional right to legal aid. The High Court has held that no such right exists, either in respect of court proceedings (M. C. v. Legal Aid Board [1991] 2 I.R. 43) or proceedings before an administrative tribunal (Corcoran v. Minister for Social Welfare [1991] 2 I.R. 175)."
Counsel refers to O'Reilly v. Limerick Corporation [1989] I.L.R.M. 181 in the context of the assertion of rights and distributive justice. Counsel submits that the determination of the allocation of limited State resources is a matter of distributive justice which falls to be exercised by or on the authority of the Government. In addition counsel refers to Sinnott v. Minister for Education [2001] 2 IR 545 in support of the same principle.
Counsel submits that the fact that a right to legal representation exists does not extend to an obligation on the State to assist indigent persons to obtain legal representation.
While the applicant has advanced his case on the basis of a right to fairness, only if one can assume that the right to legal representation entails a right to compel the State to pay for it can it be said that the applicant can advance his contention.
Counsel refers to the nature of the orders that may be made by the Council. It is submitted that the very fact that sanctions may be imposed does not create a right to legal representation equivalent to that before a court of law.
Counsel refers to the fact that it has previously been held by this Court that the role of the Council is not the administration of justice and that it has a limited right of publication of findings etc. This court held in M. v. Medical Council [1984] I.R. 485 that there was no requirement for a court order for lesser sanctions. It is submitted that the orders made by the Council are of a different character to orders made by this court.
Counsel refers to Article 6 of the European Convention of Human Rights and submits that injury to one's representation does not come within the provisions of Article 6. Counsel submits that Article 6 is concerned with court proceedings. Counsel submits that a finding adverse to one's representation by the Committee is not equivalent to a finding by a court.
Counsel refers to Al Fayed v. United Kingdom 18 EHRR 393, in which the European Court of Human Rights held that an investigation by inspectors appointed under the Companies Acts in England was not such as to attract the application of Article 6 para. 1 of the European Convention of Human Rights.
At paras. 61 and 62 of its judgment at p.428 the Court ruled, inter alia, as follows:
"6 1."...In short, it cannot be said that the Inspectors' inquiry "determined" the applicants' civil right to a good reputation, for the purposes of Article 6 para. 1 (art. 6-1), or that its result was directly decisive for that right.
62. Acceptance of the applicants' argument would entail that a body carrying out preparatory investigations at the instance of regulatory or other authorities should always be subject to the guarantees of a judicial procedure set forth in Article 6 para. 1 (art. 6-1) by reason of the fact that publication of its findings is liable to damage the reputation of the individuals whose conduct is being investigated. Such an interpretation of Article 6 para. 1 (art. 6-1) would in practice unduly hamper the effective regulation in the public interest of complex financial and commercial activities. In the Court's view, investigative proceedings of the kind in issue in the present case fall outside the ambit and intendment of Article 6 para. 1 (art. 6-1)."
Counsel refers to the provisions of the Companies Act permitting the High Court to make a decision disqualifying a person from holding a directorship in a company as opposed to the effect of a finding by inspectors under the Companies Acts. The latter may not have a legal consequence.
Based upon this analogy counsel submits that the hearing before the Committee is essentially investigative in nature and does not of itself affect the rights of a person under investigation.
Counsel refers to the authority of Condon v. Coras Jompair Eireann (Unreported, High Court, Barrington J., 16 November, 1994) where it was held that there was no legal right to legal aid for an employee of the respondent who was the subject of a statutory inquiry under the Railway Regulation Act, 1871. The applicant sought to be reimbursed legal expenses incurred by him and these were refused by the respondent.
At p. 18 of his judgment Barrington J. stated inter alia:
"It is one thing to say that a man must be allowed to defend himself but quite another to say that the State must pay the cost of his defence."
Barrington J. indicated that The State (Healy) v. Donoghue did not contemplate a case such as that under review. Barrington J. held that the plaintiff's submission under the Constitution failed.
In reply to the submissions of counsel for the respondent and for the Attorney General it is submitted by Mr. McDonagh that the instant case is concerned with fair procedures and that this issue has not been addressed on behalf of the respondents or the Attorney General. Counsel stresses that if the applicant is to obtain fair procedures then if he cannot be legally represented he cannot obtain fair procedures. It is submitted that the authorities relied upon by counsel for the respondent are not in point.
Insofar as it was argued that in its discretion this court should refuse the applicant the relief sought on the grounds of delay, it is submitted that the discretionary nature of the relief cannot be divorced from the merits of the case.
Counsel refers to the fact that the Supreme Court granted the applicant leave to institute these proceedings notwithstanding the history of the case. It is submitted that the applicant could not raise the issue of legal aid until after the determination of the earlier judicial review proceedings. It is submitted that the procedural arguments advanced by counsel for the respondent should not prevail over the injustice alleged.
Counsel categorises as "extraordinary" the contention advanced on behalf of the respondent that the risks to the applicant were not substantial. It is submitted that the enquiry could result in the applicant being precluded from becoming a registered medical practitioner.
With regard to the authority of M. v. Medical Council [1984] I.R. 485, it is submitted that counsel for the respondent glosses over the conclusion of Finlay P. in that case where he relied upon the existence of a full right of appeal to the High Court in that case. In the instant case no such right of appeal subsists.
With regard to the distinction contended for between the proceedings before the Committee and criminal proceedings, counsel refers to the fact that it is conceded that the same standard of proof applies before the Committee as in criminal proceedings.
With regard to the authority of K Security Limited v. Ireland and The Attorney General (Unreported, High Court, 15 July, 1977) relied upon by the respondent, it is submitted that one must have regard to the penultimate page of the judgment where it is recorded that the plaintiff did not complain that he did not have the assistance of solicitor and counsel at all stages and for all the purposes that they would have been appropriate.
Counsel refers to the fact that in Condon v. C.I.E. (Unreported, High Court, Barrington J., 16 November, 1994) the plaintiff was in fact legally represented and accordingly it is submitted that the issues arising in these proceedings did not arise in that case. In fact at p. 18 of the judgment Barrington J. records the fact that in the proceedings before him all the parties agreed that the proceedings before the Court of Inquiry were conducted with exemplary fairness.
With regard to the case of M. C. v. Legal Aid Board [1991] 2 I.R. 43 the underlying dispute was an inter partes dispute and did not involve any reflection on the good name of the applicant. Counsel submits that the issues in Corcoran v. Minister for Social Welfare [1991] 2 I.R. 175 were wholly different to those at issue before the Committee and concerned the applicant's means and the entitlement to social welfare.
Counsel refers to the fact that in S. v. Landy (Unreported, High Court, Lardner J. 10th February 1993), this court had no difficulty in applying the principles arising in the State (Healy) v. Donoghue [1976] I.R. 325, notwithstanding the fact. that the proceedings in question were not criminal proceedings.
With regard to the cases cited by counsel for the Attorney General, it is submitted that the decisions in O'Reilly v. Limerick Corporation [1989] I.L.R.M. 181 and Sinnott v. Minister for Education [2001] 2 IR 545 do not affect the principles arising in the instant case. It is submitted that the Al Fayed v. United Kingdom case did not involve the right to earn a livelihood. In that case the applicant had legal representation. On this basis it is submitted that the case is of no assistance. It is also submitted that the case of a barrister and the present case are far removed from one another.
Counsel contrasts the purpose of the instant inquiry with the nature of the inquiry at issue in the Al Fayed case.
Conclusion:
An examination of the facts of this case is necessary to determine whether the applicant can obtain a fair hearing before the Committee in the absence of legal representation. In this regard it is necessary to note the nature of the inquiry which is essentially addressed to the conduct of the applicant and an ascertainment as to whether the same can be said to have constituted professional misconduct.
It is clear that the applicant is entitled to legal representation. However, this should not be confused with the right to legal aid. The issue whether the Act of 1978 empowers the Council to provide same must depend on a construction of the Act of 1978. I am satisfied that there is no ambiguity in the provisions of s. 56 insofar as it is the section relied upon by the applicant in support of his contention that the Council was obliged in the circumstances of the case to provide him with the means to secure legal representation. I cannot hold with the applicant in his contention that the section should be construed so as to enable the Council to provide legal aid to the applicant. I am satisfied that the section was intended to address matters other than the provision of legal aid and I am satisfied that if the Oireachtas had intended the Council to make provision for legal aid that it would have indicated this plainly in the legislation. I am satisfied that the powers of the Council under the Act of 1978 are limited in nature and cannot be construed in the manner contended for.
In light of the authorities cited to me it is clear that no authority of this Court or of the Supreme Court establishes the right contended for on behalf of the applicant. While the hearing before the Committee is a hearing by a body of persons of the applicant's own profession, which may lead to a finding of misconduct, I am satisfied, in particular having regard to the decision of Finlay P. in M. v. Medical Council [1984] I.R. 485 that such a hearing in the absence of legal representation to the applicant would not be a hearing in disregard to the essentials of fairness or due process. In this regard it is clear that the applicant may be represented by someone other than a member of the legal profession.
I am also satisfied that the hearing before the Committee does not represent the administration of justice and it clearly can be contrasted with proceedings before courts established under the Constitution.
I am also satisfied, notwithstanding the fact that the Council and the Committee have been established by law, that it is not necessary, for the hearings before the Committee to be fair that legal representation be provided at State expense to a member of the medical profession who is otherwise unable to pay for same. Accordingly, I am satisfied that the State is not required to provide financial support for a citizen who's conduct is being investigated by an administrative tribunal such as the Committee, especially where, as in the instant case, the hearing does not of itself involve a determination of rights and where the Committee do not have a power of sanction for any misconduct found to have been established.
While it is clear that the facts in Corcoran v. Minister for Social Welfare [1991] 2 I.R. 175 differ from those of the instant case, I am satisfied that the principle established by that case that the applicant was not entitled to legal aid for a matter which might be of great importance to the applicant, applies with equal force to the instant case.
I am satisfied that this case must be contrasted with Kirwan v. Minister for Justice [1994] 2 I.R. 417 as the subject matter of the two cases differ fundamentally and the consequences for the applicant in the instant case cannot be considered in any way to be analogous to those for the applicant in the former case where the issue of his liberty was at stake.
I am satisfied that the issues before the Committee are essentially matters of fact which are in the main medical issues which must be capable of being understood by the applicant.
I believe that some assistance can be gained from the decision of this Court in Condon v. C. I. E. (Unreported, High Court, Barrington J., 16 November, 1994) and to the conclusion of Barrington J. where he stated:
"It is one thing to say that a man must be allowed to defend himself but quite another to say that the State must pay the cost of his defence."
I believe that this reflects the fact that one must not confuse the right to legal representation with the right to legal aid. I believe that a number of the authorities cited by counsel for the applicant support the uncontested right to legal representation but fail to address the right to legal aid contended for.
While some reliance has been placed by counsel for the respondent on the role of the Legal Assessor to the Medical Council, I place no reliance upon the presence of the Legal Assessor who is appointed to assist the Council and the Committee in its work, other than to note that the Committee will have the assistance of an experienced member of the legal profession to ensure that it conducts its hearings in a fair manner. It is clear that the role of the Legal Assessor cannot be construed in any way as requiring that individual to provide legal advice or assistance to a person in the position of the applicant appearing before the Council or the Committee.
While the respondent has relied upon the discretionary nature of the remedy sought by the applicant and the failure of the applicant to move promptly to this court as a basis upon which I should in any event refuse the applicant the relief sought, I am satisfied that it is not necessary in the circumstances to determine this application on any such discretionary basis.
In conclusion I am satisfied that the applicant has failed to establish any entitlement to the relief sought herein and I refuse same.