An inquiry into allegations of professional misconduct against a Cork doctor, Dr James M. Barry, may be held in private, the Supreme Court ruled yesterday.
The five-member court unanimously rejected an appeal by Dr Barry (72), of Lauriston Lodge, Glanmire, Co Cork, against the High Court's dismissal of his challenge to a decision of the Medical Council's Fitness to Practise Committee to hold the inquiry in private rather than in public.
In a decision on November 11th, 1996, the committee decided to hold the inquiry in private under the Medical Practitioners Act, 1978.
In his judgment on the appeal yesterday, Mr Justice Barrington said the inquiry originated in a number of complaints made against Dr Barry by women who were former patients of his. The judge said it would not be appropriate at this stage to go into details of the complaints.
It was sufficient to say that the complaints and statements of the evidence which the former patients proposed to give to the inquiry contained matter of a most intimate nature concerning the women's private lives and the doctor-patient relationship.
Dr Barry had contended that, as he had required the committee to hold its inquiry in public, the committee therefore was not entitled to rule that the full inquiry be held in private.
He had submitted that the committee's proceedings were prosecuted, and its decision made, in circumstances inconsistent with the objective separation of functions of prosecutor and adjudicating tribunal. He further argued the decision was in breach of the European Convention on Human Rights and violated the guarantee of fair procedures implied in Article 40 (3) of the Constitution.
Dismissing all the grounds of appeal, Mr Justice Barrington said the procedure of an inquiry under the 1978 Act should be looked at as a whole. Three phases were involved.
In the first, the Fitness to Practise Committee makes findings of fact and recommendations while the second involves the Medical Council deciding what, if any, penalty to impose. In the third phase, the medical practitioner involved has the right to a rehearing before the High Court.
The judge said that, in Dr Barry's case, the procedure was only at the beginning of the first phase. The 1978 Act provided that the findings of the committee should not be made public without the consent of the doctor concerned unless that doctor was found guilty of professional misconduct or unfit to engage in the practice of medicine.
Such a provision would be pointless if the proceedings before the committee had been held in public and it appeared that the Act contemplated, but did not necessarily require, that the proceedings before the committee would have been held in private. It was not surprising to hear the committee's practice was to hold proceedings in private.
There was also no reason why the committee should not hold its proceedings in public if all parties were agreed and if the committee itself thought it was the proper thing to do.
He said it was not for the Supreme Court to rule in advance as to whether any hearing should be in public or in camera and he found that the committee had discretion to hold the inquiry in private.
The judge added that one could not say whether Dr Barry, at the end of the entire disciplinary procedure, would or would not have had a public hearing of the issues. "Indeed, one should not now say anything which would have the effect of inhibiting or trammelling the discretion of those who may have to conduct future proceedings," he said.
"The fact that the court is placed in this position underlines the fact that these proceedings are premature."
Mr Justice Barrington also found "a fundamental fallacy" in the contention that the committee's proceedings were prosecuted and its decision made in circumstances inconsistent with the objective separation of the functions of prosecutor and adjudicating tribunal.
The proceedings before the committee were not a prosecution and the registrar of the committee was not a prosecutor, he said.
He further found that the committee's decision did not violate the guarantee of fair procedures in the Constitution. As the European Convention on Human Rights was not part of Irish domestic law, it was not appropriate for the court to give a formal answer to the question about whether the committee's decision breached Article 6 (1) of the convention, which dealt with the right to a fair and public hearing by an independent and impartial tribunal established by law. The Chief Justice, Mr Justice Hamilton, Mrs Justice Denham, Mr Justice Keane and Mr Justice O'Flaherty said they agreed with the judgment of Mr Justice Barrington.