Lyn McCarthy and Fergal Mullins

The recent judgment of Ms Justice Irvine in relation to an interim suspension application brought by the Health and Social Care Professionals Council (CORU) in respect of an optometrist provides a useful restatement of the principles considered by the High Court in determining interim suspension applications made on behalf of professional regulators.

The judgment also serves to highlight the discretion which the High Court has to grant such orders for a defined period only and, as such, to ensure that a regulator’s investigations and preparation for Inquiry occur most expeditiously where a registrant has been suspended from practice.

Complaint

The application was brought by the Council of CORU, pursuant to section 60 of the Health and Social Care Professionals Act, 2005 (as amended) arising from a complaint relating to concerns in respect of the respondent optometrist’s clinical abilities in the context of carrying out examinations.

As such, the complaint included allegations in relation to an alleged inability to examine the back of a patient’s eye; alleged inability to perform a refraction procedure; and an apparent lack of clinical knowledge.

The optometrist sought to challenge CORU’s suspension application in circumstances where he had received a job offer and intended to start work with another optician in July 2022.

Applicable test

The High Court acknowledged the draconian nature of interim suspension orders and emphasised that it must be satisfied that such an order is necessary in order to protect the public, before imposing it.

In this regard, Ms Justice Irvine also referred to the judgment of Morris J in Medical Council v Whelan (Unreported, 20 February 2001) which highlighted the hardship to any registrant whose name is removed from the register and the need for a suspension order to only apply in circumstances where no other such order would serve to protect the community.

Reference was also made to the judgment of Kelly J. in Casey v Medical Council [1999] 2 I.R. 534 which cautioned that interim suspensions should only be reserved for ‘exceptional’ cases.

Balancing of Interests

Ms Justice Irvine outlined that the pertinent question in the instant case was whether the public interest outweighed the rights of the optometrist to carry on his practice; to earn a livelihood; and avoid the resulting reputational damage from an order suspending his right to practise.

Furthermore, Ms Justice Irvine confirmed that she was satisfied the Council of CORU had duly considered the criteria set out by Barron J in O’Ceallaigh v An Bord Altanais [2000] 4 I.R. 54, namely:

• the seriousness of the conduct complained of;
• the strength of the case against the optometrist; and
• whether the likely outcome, in terms of sanction, in the event of the misconduct being established would be a strike off either on a definite or permanent basis.

Public protection consideration

Ms Justice Irvine outlined that it was not possible to determine the factual dispute between the parties, which could only be resolved at the inquiry, and highlighted that the optometrist had not produced any documentation in relation to his job offer, nor the intention of his prospective employer to offer him training.

In any event, Ms Justice Irvine suggested that such training would be most unlikely to uplift the optometrist’s skills and clinical knowledge to a sufficient extent to no longer pose a risk to the public.

Having considered the nature of the work carried out by an optometrist, Justice Irvine noted that any order which would restrict the optometrist to working under supervision would not be feasible.

Accordingly, Ms Justice Irvine granted the suspension order sought by the Council, although acknowledging the notable factual dispute between the parties and the grave prejudice that the optometrist would suffer in respect of his expressed intention to return to Ireland to continue practise in his profession.

Time limited suspension

The suspension order granted was for a period of five months, until 1 December 2022. In granting the order, the then President of the High Court urged CORU to expedite the inquiry, indicating that if the inquiry was not completed by that date, CORU would be required to renew their suspension application.

The decision to grant the interim suspension for a period of five months would appear to reflect the overarching obligation on professional regulators to expedite Inquiries where an interim suspension order is in place, such is the severity of the order in terms of preventing a registrant practising.

As to whether the courts will increasingly require regulators to progress investigations to Inquiry in matters such as this by increasingly granting interim suspension for relatively short periods of time remains to be seen and will be followed with interest.

• Lyn McCarthy is a partner and Fergal Mullins is an associate solicitor, both in the healthcare team at Hayes solicitors LLP.