Supreme Court of Ireland Decisions

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URL: http://www.bailii.org/ie/cases/IESC/2008/S41.html
Cite as: [2008] IESC 41, [2009] 1 IR 283

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THE SUPREME COURT

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

Kearns J.

[S.C. No. 47/07]

BETWEEN

MICHAEL SHINE

APPLICANT/RESPONDENT

AND

THE FITNESS TO PRACTISE COMMITTEE OF THE MEDICAL COUNCIL AND THE MEDICAL COUNCIL

RESPONDENTS/APPELLANTS

JUDGMENT of Mr. Justice Kearns delivered the 14th day of July, 2008

This is an appeal brought by the Medical Council against so much of the order of prohibition granted by the High Court (O’Donovan J.) on 15^th January, 2007 as prevents the Medical Council from further proceeding with enquiries under Part V of the Medical Practitioners Act 1978 into the conduct of the applicant arising from certain complaints made against him by five complainants, JMcC, WA, PM, JF and MD. All five had been child patients of the applicant who alleged that they had been victims of indecent or sexual assaults by the applicant.

The applicant, who is now retired, worked as a consultant surgeon at Our Lady’s Hospital in Drogheda. He also had consulting rooms at Lawrence Street and Fair Street in Drogheda. During the period covering the years 1994 to 1997 a number of complaints regarding the applicant’s conduct as a medical practitioner including, in particular, alleged incidents of indecent assault, were made to the Medical Council which in turn made an application to the Fitness to Practise Committee of the Council to conduct an enquiry into the applicant’s conduct. In that regard, six notices of intention to hold an enquiry into the applicant’s conduct pursuant to Part V of the Medical Practitioners Act 1978 issued between the months of February, 1996 and May, 2004. These six notices related to the complaints of twenty-nine complainants with regard to alleged incidents ranging over a period from 1964 to 1994.

Separate criminal proceedings were instigated against the applicant and on 23^rd December, 1996, a total of fourteen summonses relating to eleven different complainants and alleging offences contrary to s.62 of the Offences Against the Person Act 1861 were issued in respect of the applicant. Subsequently two further summonses relating to six different complainants and also alleging offences contrary to s.62 of the Offences Against the Person Act 1861 were issued in respect of the applicant. These summonses arose from the same alleged incidents which had given rise to the complaints made to the Medical Council.

The applicant sought to prohibit his prosecution in respect of the said charges by way of judicial review on the grounds that the delay in bringing the said charges was such that there was a real and serious risk that he would not get a fair trial. His application for relief by way of judicial review was dismissed by the High Court on 18^th February, 1999 and, following an appeal, by the Supreme Court on 19^th December, 2000. The criminal proceedings thus continued and, in the month of October, 2003, the applicant was tried in the Circuit Criminal Court in Dundalk, County Louth in respect of six of the summonses which had been issued against him, being those in relation to WA, MD, JF, JMcC, PM and JO’G. The charge in respect of the complainant WA resulted in an acquittal by direction of the trial judge. The charges brought on foot of the complaints by the remaining complainants resulted in an acquittal by the jury.

Other remaining criminal matters were outstanding at that time, but they are not relevant to the present application.

The hearing before the Fitness to Practise Committee of the Medical Council into these and other complaints had been deferred pending this criminal trial. On 7^th July, 2004 the applicant’s solicitor requested that the enquiry be further deferred pending the outcome of the outstanding criminal proceedings against the applicant. This request was refused by the Committee who then fixed the 15^th November, 2004 as the date for the hearing of an enquiry into the applicant’s conduct in the light of the complaints made by AT, JO’G, LG, PM, AC and WA. At the same time the Committee advised the applicant’s solicitor that, having regard to the applicant’s acquittal, the first three allegations made by each of JMcC, JO’G, JF, MD, WA and PM, being complaints which were identical or similar to those covered by the criminal charges in respect of which the applicant had been acquitted, would be struck out. There were thus left outstanding complaints which charged the applicant with undertaking inappropriate or improper medical examinations which had no medical basis or justification, breaching the trust inherent in the doctor/patient relationship and/or bringing the medical profession into disrepute.

By letter dated 22^nd September, 2004 the applicant’s solicitors invited the Medical Council to confirm that the investigations then proposed by the Fitness to Practise Committee would be dismissed and struck out having regard to what was asserted to be inordinate and inexcusable delay in making and enquiring into the complaints against the applicant which, it was asserted, was severely prejudicial to the applicant. By way of reply, the respondent’s solicitors invited the applicant’s solicitors to make any application they thought appropriate with regard to delay to the Fitness to Practise Committee at a call-over meeting of the Committee to be held on 19^th October, 2004. However, following an application made to the Committee on that date, the Committee concluded that the delay with regard to the complaints in relation to the applicant’s conduct had been reasonable and that in any event portion of the delay had been as a result of a request made by the applicant himself. The Committee further concluded that the applicant’s alleged inability to defend himself on account of lack of recollection or lack of medical records was not a matter for the Committee and could be addressed at the hearing of the enquiry into the complaints.

By order of the High Court (McKechnie J.) made on 8^th November, 2004 the applicant was given leave to apply by way of judicial review to seek an order of prohibition preventing the respondents from further proceeding with all current enquiries under Part V of the Medical Practitioners Act 1978 into the conduct of the applicant.

The matter ultimately came on for hearing before O’Donovan J. who was requested by the parties to analyse each of the complaints which had been made in respect of the applicant’s conduct for the purpose of determining whether or not, notwithstanding the delay in making complaints against him, he could obtain a fair hearing before the Fitness to Practise Committee of the Medical Council. In the course of his judgment delivered on 19^th December, 2006, O’Donovan J. noted that the complaints related to events alleged to have occurred on dates as far back as 1964 and that the applicant maintained he had no recollection of treating the vast majority of the persons who had made complaints against him. The applicant had further asserted there were now no records in existence with regard to a number of the complainants. O’Donovan J. accepted that, because of delay, the applicant would experience some difficulties in defending himself. However, he was not persuaded that the applicant had in any way been prejudiced by the failure of the Fitness to Practise Committee to enquire into his conduct arising from the complaints up to the present time. He then considered whether the alleged absence of records with regard to the treatment which certain of the complainants had received when coupled with the applicant’s alleged lack of memory of having treated those particular complainants, was such that, having regard to the delay in making those complaints, he would be prevented from obtaining a fair hearing before the Committee.

At the conclusion of the hearing before him O’Donovan J. had undertaken to consider the detail of each and every one of the complaints which had been made against the applicant. Having done so, he indicated in his judgment that the question as to whether complaints ought to be upheld would depend of the respective credibility of the complainants and of the applicant. He stated that medical records would not identify whether or not the applicant had committed certain acts complained of and for that reason did not think that their absence would in any way prejudice the applicant in his ability to defend himself in cases where it was alleged that records were no longer available. He did however accept that the lack of detail with regard to dates would prevent the applicant from raising a defence of alibi or identifying other medical personnel who might have been involved with the treatment of particular complainants.

O’Donovan J. then identified a tranche of cases where the complainant alleged that, before abusing him, the applicant had requested the nurse, who up to that point had been in attendance, to leave so that the applicant was left alone with the complainant. He identified three cases where the applicant was not in a position to identify those nurses and concluded that the applicant was inhibited in defending the claims of complainants in cases where this difficulty arose. On this basis he prohibited the respondents from proceeding with an enquiry into the conduct of the applicant arising from the complaints of three particular complainants.

He then proceeded to deal with the complainants whose complaints formed the basis of the criminal trial in Dundalk in which the applicant had been acquitted. O’Donovan J. noted that the respondents had struck out the first three of the allegations made in respect of each of these complainants and then stated as follows:-

“It seems to me that, were the respondents permitted to enquire into the applicant’s conduct arising from the complaints made by those complainants, then, given that he has been acquitted of the charges proffered against him arising from those complaints, he would be exposed to double jeopardy in respect thereof and, accordingly, I think it inappropriate that the respondents be permitted to enquire into the applicant’s conduct arising from the complaints made by those complainants.”

The learned trial judge then went on to deal with the complaints of certain other complainants in respect of whom there were no relevant records and of whom it could be said that they were “extremely vague” with regard to the detail of the time at which the events of which they complained took place. In relation to this tranche of five complainants, the learned trial judge also prohibited the Committee from undertaking an enquiry. In so far as the balance of complainants was concerned, O’Donovan J. was not persuaded that there was a real or serious risk by reason of any delay that the applicant would not obtain a fair hearing and thus declined to grant relief in respect of ten other complainants.

THE APPEAL

As already indicated, the appeal from the judgment and order of O’Donovan J. is strictly limited and is confined to seeking an order vacating so much of the order of prohibition as related to the tranche of complainants whose allegations had been the subject matter of the criminal trial in Dundalk and in respect of whom O’Donovan J. invoked the “double jeopardy” principle to prevent further inquiry by the respondents.

The grounds of appeal are as follows:-

“1. That the learned judge of the High Court erred in law in holding that the applicant would be exposed to double jeopardy were the respondents to conduct enquiries into the complaints made against the applicant by JMcC, LA, PM, JF and MD in circumstances where the applicant was not granted leave by the High Court to seek an order of prohibition upon grounds of double jeopardy, and/or

The learned judge of the High Court erred in law in holding that the applicant would be exposed to double jeopardy were the respondents to conduct enquiries into the complaints made against the applicant by JMcC, LA, PM, JF and MD in circumstances where the issue of double jeopardy was not argued before the High Court.
The learned judge of the High Court erred in law and in fact in holding that the applicant would be exposed to double jeopardy were the respondents to conduct enquiries into the said complaints”.

It is appropriate at this point to refer back to the order granting leave to bring these proceedings which was made by McKechnie J. on 8^th November, 2004.

That order gave the applicant leave to apply on the following grounds as set out in Para. E of the Statement of Claim:-

“(i) The decision of the first and/or second named respondent to proceed with an enquiry pursuant to Part V of the Medical Practitioners Act 1978 is in breach of the applicant’s constitutional rights and in breach of Article 6 of the European Convention for the Protection of Fundamental Rights & Freedoms.

(ii) Further and/or in the alternative the delay in the holding of the said enquiry has prejudiced the applicant in his ability to adequately defend himself in the course of the enquiry. In particular and without prejudice to the generality of the foregoing:-

The applicant’s ability to recollect material information in relation to the complaints made against him has been severely impaired.
The applicant’s ability to recollect material witnesses in relation to the complaints made against him has been severely impaired.
Records which would have been available had the proposed enquiry taken place within a reasonable time are no longer available.
The nature of the complaints made against the applicant are by reason of the passage of time unreasonably vague.

(iii) The applicant was not in a position of dominion over any of the persons who have made complaints to the first and/or second named respondent, did not exert control over them nor were they prevented from making complaints to the first and/or second named respondent within a reasonable time of the date of the alleged incident giving rise to the complaint and no or no adequate explanation was given to the first and/or second named respondent for the delay in the making of the said complaints and the first and/or second named respondent cannot rely on any alleged dominion to justify or excuse the delay in holding the enquiry herein.

(iv) The first named respondent erred in law and fact taking into consideration inadmissible allegations or suggestions of dominion in determining that the delay was reasonable.

(v) The first named respondent erred in law and fact in taking into consideration allegations of dominion made in relation to so many of the complainants based on matters of which the applicant has been adjudicated not guilty and further erred in applying any such suggestions of dominion in relation to those complainants to the other complainants referred to in the current notices of enquiry.

(vi) Further and/or in the alternative the first named respondent had no or no adequate evidence or material upon which to make a finding that the delay in the making of complaints against the applicant was reasonable.

(vii) The hearing of the complaints of separate complainants in the course of a single enquiry would be prejudicial to the applicant and in breach of fair procedures.

(viii) In relation to discovery sought herein same is necessary in order to determine the matters taken into consideration by the first named respondent in making the decision to refuse the application to terminate the enquiries and the decision that the delay was reasonable.”

Quite clearly, the ground upon which O’Donovan J. purported to base his judgment in respect of what might be described as the “double jeopardy complainants” did not constitute one of the grounds upon which leave was granted by McKechnie J. No relief was ever sought on the basis that the principle of double jeopardy arose by virtue of the acquittal of the applicant in Dundalk. Insofar as it may have been the case that O’Donovan J. applied the term “double jeopardy” in a loose or non-technical sense to grant prohibition in circumstances where he may in fact have regarded it as unfair to allow the Committee proceed by reason of the acquittal of the applicant on the criminal charges, then equally leave to seek relief on this basis or to put forward this particular ground formed no part of the leave application for judicial review.

In response, counsel for the applicant referred the Court to a letter written by the applicant’s solicitors on 26^th April, 2007 to the solicitors for the Medical Council. In it they state, inter alia, as follows:-

“We refer to the judgment of the late Mr. Justice Dermot O’Donovan culminating in his order of 15^th January, 2007. We understand that you are anxious to appeal in relation to one issue of the judgment which relates to the enquiries arising from the complaints of JMcC, JF, MD, LA and PM.

We note that the issue upon which you wish to appeal is in relation to the issue of double jeopardy. We would however point out that in our client’s contention, the order of the High Court judge should not in any way be disturbed in relation to same. While a challenge might be made as to the dismissal of these matters on the basis of double jeopardy, what is perfectly clear between the parties is that these matters were fully in dispute between them and in circumstances in which our client has been acquitted of the three most serious charges arising out of each of these individuals and in which the only outstanding charges were of a relatively minor nature, it is our contention that the issue of delay in relation to these charges in the absence of any countervailing public policy pressures to have such matters fully investigated, they having been the subject of a lengthy and comprehensive criminal trial which resulted in our client’s complete acquittal in relation to all charges, those charges should and were properly dismissed by the High Court judge herein. If there is to be any variation of the order, in our respectful submission, same would simply arise by reason of the reasons for the dismissal of same, it had been agreed between all parties that the learned High Court judge would and, indeed it is quite clear from his judgment that he did, consider each of these charges in great detail and carried out a thorough case by case review of each of these charges, having indicated his intention so to do, and both applicant and respondent having indicated that they were quite happy for the learned High Court judge to carry out this review between the time of the hearing of the case, which dealt with the general legal principles, and the delivering of the reserved judgment.

Your clients have been left with a number of matters which they may proceed to full hearing if they wish. It appears that engaging in a further appeal at this stage by your clients in relation to the order, is simply going to prolong matters yet further, and in the light of the submissions contained above specifically that the matter which your clients seek to appeal in relation to are matters of a relatively minor nature, we simply cannot see the merit of an appeal at this stage, given the inordinate delay which occurred in these cases as well as in the other cases in which the learned High Court judge granted relief.

Clearly the acquittal of our client in relation to the criminal charges was discussed and has been relied upon during the course of the hearing herein and in respect of WVA, MD, JKF, JGMcC, PM and JO’G, our client was, as noted previously, acquitted in relation to all of those charges.

Given the above factors, and given the delay which has occurred in the cases in which the learned High Court judge referred to double jeopardy, it is our respectful submission that the decision of the learned High Court judge rendered at the end of the day is the valid and correct decision, and clearly any variation of the reasons for that decision from being because of double jeopardy to being by reason of the fact that there have been significant delays in where the only charges remaining were relatively minor in nature, it is our respectful submission that nothing is to be gained by the appeal sought herein.

You might accordingly take your client’s instructions in relation to the matter and revert to us as a matter of urgency in an effort to bring some finality to the matters herein.

We write as a matter of record. You might note that clearly in circumstances in which we are not seeking any variation of the order of the High Court in question it is not proposed to lodge any cross appeal, but that clearly in relation to were there to be any variation of the grounds from which the orders in question were made, this letter should be notified as indicating our client’s position in relation to the appeal in this regard.”

In the course of submissions before this Court, Mr. Eoin McCullough, Senior Counsel for the Medical Council, referred to a letter written by the applicant’s solicitors on 13^th October, 2004 to the Medical Council. This was a letter written subsequent to the criminal trial in Dundalk and prior to the commencement of the judicial review proceedings in November, 2004. The relevant paragraph of the letter stated:-

“Furthermore, it is to be noted that the procedures envisaged by the Medical Council will have a severe impact on our client’s civil rights in circumstances in which our client has previously undergone a lengthy criminal trial at the termination of which he has been found not guilty of all the charges laid against him relating to these matters and yet, notwithstanding this acquittal, your client, whoever that should be, appears determined to proceed with an investigation relating to inter alia the same people as were the subject matter of the criminal charges and in respect of matters which are so closely linked to the matters the subject matter of the criminal charge as to contravene entirely the principle of autrefois acquit. You might note for the record that this also will be the basis for seeking a striking out and/or dismissal of the entire of the charges relating to all individuals who are the subject matter of the criminal prosecution.”

Mr. McCullough stressed that, notwithstanding the inclusion of the cited paragraph in the letter of the 13^th October, 2004, the applicant’s legal advisors nonetheless elected or omitted to seek relief on any ground, be it double jeopardy or unfairness, which was based upon the acquittal of the applicant in the criminal proceedings.

DECISION

An applicant for leave to bring judicial review proceedings is required by Order 84 of the Rules of the Superior Courts, 1986 to specify the grounds upon which relief is being sought. Concomitant with the obligation to seek leave from the court, the requirement to set out the grounds stems from the nature of the remedy being sought, a remedy which may have far reaching consequences for any respondent affected by the making of an order . As Denham J. pointed out in G. v Director of Public Prosecutions [1994] 1 I.R. 374 at p. 382:-

“This preliminary process of leave to apply for judicial review is similar to the prior procedure of seeking conditional orders of the prerogative writs. The aim is similar – to effect a screening process of litigation against public authorities and officers. It is to prevent an abuse of the process, trivial or unstateable cases proceeding, and thus impeding public authorities unnecessarily. Even though the ambit of judicial review has widened in recent years, the kernel of the reason for this filtering process remains the same”

In similar vein Lewis (Judicial Remedies in Public Law, 3^rd ed. (London, 2004), at p.330) states:-

“The requirement of permission is designed to filter out claims which are groundless or hopeless at an early stage. The purpose is: “… to prevent the time of the court being wasted by busybodies with misguided or trivial complaints of administrative error and to remove the uncertainty in which public authorities might be left…”. As such, the aim is to prevent a wasteful use of judicial time and to protect public bodies from the harassment (intentional or otherwise) that might arise from the need to delay implementing decisions, where the legality of such decisions has been challenged.”

A clear formulation of grounds will enable the judge to whom the application is made to determine whether or not leave should be granted and on what grounds. Once leave has been granted, an applicant has limited scope thereafter for arguing that an amendment should be made to the grounds permitted to be argued by the judge who granted leave to bring the proceedings. Thus in McCormack v. Garda Siochana Complaints Board [1997] 2 IR 489, Costello P. allowed a requested amendment of grounds to be made on the particular facts of the case but stated (at pp. 503-504):-

“It seems to me that only in exceptional circumstances would liberty to amend a grounding statement be made because the court's jurisdiction to entertain the application is based on and limited by the order granting leave. But when facts come to light which could not be known at the time leave was obtained and when the amendment would not prejudice the respondents, then it seems a proper exercise of the court's power of amendment to permit the amendment rather than require that the new "grounds" be litigated in fresh proceedings.”

The decision in McCormack v. Garda Siochana Complaints Board has been followed in a number of cases in which applications to amend grounds arose, including O’Leary v. Minister for Transport [2000] 1 ILRM 391, in which Kelly J. cited the above passage as laying down the appropriate test where leave was sought to amend the grounds in judicial review proceedings.

A similar approach was adopted by Finnegan P. in Dooner v. Garda Siochana (Complaints) Board (Unreported, High Court, 2^nd June, 2000). In Hynes v. Wicklow County Council [2003] 3 I.R. 66, Murphy J. noted that the test set out by Costello P. in McCormack v. Garda Siochana Complaints Board had been applied in both O’Leary v. Minister for Transport and in Dooner v. Garda Siochana (Complaints) Board. He suggested (at p.74) that the test set down by Costello P. was “twofold”: “the applicant had to rely on facts which could not have been known at the time leave was obtained and, secondly, the amendment would not prejudice the respondents.” The Law Reform Commission Report on Judicial Review Procedure, LRC 71 – 2004 (Dublin, 2004) (at p.23) noted that the discretion to amend had been invoked quite restrictively, citing McCormack v. Garda Siochana Complaints Board. It recommended (at p.25) that:-

“… amendments should be permitted to the grant of leave, in both conventional judicial review proceedings and specialised statutory schemes, where the material on which they are based was not or could not have been discovered with reasonable diligence at the time, provided that there is no unacceptable delay in making the application.”

Finally, in O’Siodhacháin v. Ireland (Unreported, Supreme Court, 12^th February, 2002) this Court allowed a Statement of Grounds to be amended on the basis that doing so did not result in any significant enlargement of the applicant’s case. In the course of his judgment Keane C.J., in noting that exceptional circumstances would be required in order to add a ground to bring what factually or legally would be a significantly different case, stated that:-

“… the court will of course be very circumspect about allowing amendments to grounds in the High Court, properly circumspect, and this court, certainly I do not think, would not normally interfere with a High Court judge who decided a matter of this nature on the basis that there was a substantial departure from the grounds as originally relied upon and on which leave was given.”

Applying these principles to the facts of the present case, it is crystal clear that the ground of “double jeopardy” was not a ground upon which leave was granted in the instant case. Furthermore, no application to amend the grounds was at any time sought either prior to or during the hearing before McKechnie J. nor was any application later made prior to the full hearing before O’Donovan J. in the High Court. This is so notwithstanding that by letter dated 13^th October, 2004 the applicant’s solicitors hinted when writing to the respondents that they might rely on some such ground. Rather conspicuously, they did not in fact do so when the case came up for mention before the Fitness to Practise Committee on 19^th October, 2004.

In the course of the hearing before this Court, counsel has not even sought to rely on double jeopardy and concedes that this was not argued in any detail before O’Donovan J. He confines all his arguments to the single ground of “fairness” contending that in as much as he invoked the principle of double jeopardy O’Donovan J. was in reality taking the view that it would be unfair for the Committee to hear evidence about complaints which had been the subject matter of a criminal trial in respect of which his client had been acquitted. In this respect he relied entirely upon a passage from the judgment of O’Caoimh J. in A.A. v. The Medical Council [2002] 3 I.R. 1 in which O’Caoimh J. stated at p.33:-

“In this regard what remains is not an issue as to whether the principles of double jeopardy have any application or whether the principle of autrefois acquit has any application to the facts of the instant case. I am satisfied that the issue is whether it would be manifestly unfair to permit the proposed inquiry or any part of it to proceed in light of the acquittal of the applicant on the charges preferred against him and tried by the Circuit Criminal Court. In conclusion, I am of the opinion that there is no reason why the Fitness to Practise Committee should not hear the proposed evidence and consider it in relation to the conduct of the applicant. I am of the opinion nevertheless that it would be essentially unfair were the respondent to enter upon a hearing to determine that the applicant was guilty of an assault of which he has been acquitted by the Circuit Criminal Court. This is not to say that the committee should not hear all of the evidence proposed to be given in assessment of whether the conduct alleged against the applicant is conduct which it considers to have been established and to determine whether in the light of this fact he is a person who may have been guilty of inappropriate behaviour in the context of the complaints set out at paragraphs three to ten inclusive in relation to each of the complainants who were allegedly examined by him when in hospital.”

However, not only did the applicant fail to raise the ground of “double jeopardy” in the instant case, he also failed to raise the ground that prohibition was warranted on the basis that there was some ‘unfairness’ in allowing the Committee to proceed with its enquiry into complaints which were also the subject of criminal charges in respect of which the applicant had been acquitted. The concept of fairness was invoked exclusively in the context of delay. Thus, even if one were to take the view that O’Donovan J. was employing the term “double jeopardy” not in a strict legal sense but rather as an expression to describe a circumstance of unfairness, the net result is still the same: the ground is not one which was raised at the time judicial review proceedings were brought.

I am quite satisfied in any event that this is not a case which would permit the application of the principle of “double jeopardy”. This is not a case of one criminal trial being followed by another. The proposed enquiry is being undertaken in a different context and for different purposes, including the protection of the public. While I am far from convinced that considerations of “fairness” would normally preclude the Fitness to Practise Committee from further enquiring into allegations which had been the subject matter of a criminal trial in which an applicant had been acquitted, I do not regard it as necessary to venture into any detailed consideration of that issue in the instant case for the reasons outlined above.

I would allow the appeal.