Ed Madden BL

In May, the High Court delivered its judgment on an ex parte application brought by the Medical Council requesting that intended proceedings by the Council in respect of a medical practitioner under section 76 of the Medical Practitioners Act 2007 take place either in camera or in an anonymised manner.

When the application came up for hearing, the Court was told that following an Inquiry under Part 8 of the Act, the Fitness to Practise Committee of the Council found that certain allegations against the doctor were proven, concluded that those findings amounted to professional misconduct and recommended that the doctor’s registration be cancelled. On foot of that recommendation, the Council decided to cancel the doctor’s registration and prohibit him from applying for the restoration of his registration for a period of 10 years.

Following the expiry of the time period for appealing the decision of the Council and in the absence of an appeal by the doctor, the Council proposed to apply to the High Court for an order confirming its decision pursuant to section 76 of the Act.

Power at common law

While the Act does not provide for a hearing other than in public of an application under section 76, it is firmly established that the Court has a power at common law to hear such a matter either in camera or in an anonymised manner. However, it is also clear that the power at common law must be used sparingly.

In the case of Medical Council v Anonymous [2019] IEHC 109, the then President of the High Court, Mr Justice Peter Kelly, said that the court must approach applications to depart from a full public hearing in section 76 cases with “resolute scepticism”.

He continued: “I must be sure that the interests involved are very clear and that the circumstances are pressing. I must be satisfied that there is no other measure sufficient to protect the legitimate interests involved. The interests involved are those of the public, the patients of the doctor and the doctor himself. Nothing more should be permitted than is demonstrated to be necessary to avoid damage to the interests involved.”

Material prejudice

Giving his judgment in the present case, Mr Justice Brian O’Moore said that if the section 76 application was heard in public, there would probably be a material prejudice caused to the doctor in the event that he was subsequently to face trial; that would particularly be the case were the decision of the Council to be confirmed by the High Court.

There was also the subsidiary consideration that a witness in respect of the doctor’s alleged activities had requested that her evidence before the Fitness to Practise Committee be heard in private. Another witness had also asked that the same hearing be held in private. The judge emphasised, however, that those considerations were secondary to his concern about the effect of a public hearing on the possible prosecution of the doctor.

The judge concluded that the intended section 76 application should be made otherwise than in public.

Anonymised manner

The question remained as to whether the hearing should be in camera or in an anonymised manner. Having examined the practicalities of hearing the application in an anonymised manner, the judge ruled it out on the basis that it would be impossible to disguise the fact that the person involved was a medical practitioner (given that the proceedings would be under the Medical Practitioners Act).

‘One final option’

In the course of a number of concluding comments, the judge spoke of “one final option”: that the Council’s application under section 76 be heard in public but that no names be provided and that the nature of the allegations not be described in any detail. He rejected that option, saying that it would represent “the triumph of form over substance”.

It would not represent the administration of justice in public in any meaningful way and would not represent the accommodation of the rights and interests involved in a balanced way.

In camera

In making an Order that the intended section 76 application be heard in camera, liberty to apply was granted to the doctor should he wish to vary the Order. This was on the basis that the application before the Court was made by the Council on an ex parte basis. The judge referred to difficulties earlier in the process in serving the doctor by post; “he had not responded to emails and had not participated in the Inquiry”. In providing that facility, the judge was not suggesting that he was aware of any reason justifying the setting aside of the Order made.

• This article first appeared in the Irish Medical Times.