Ogochukwu Anachebe (plaintiff) v Medical Council (defendant).

Administrative Law - Medicine - Professional misconduct - Temporary registration of medical practitioners - Preliminary issue - Statutory interpretation - Whether decision not to grant plaintiff temporary registration unconstitutional - Whether open to plaintiff to challenge decision in High Court - Medical Practitioners Act 1978, sections 29, 46, 47, 48 and 49.

The High Court (before the President of the High Court, Mr Justice Morris); judgment delivered 12 July 2000.

IN assessing as a preliminary issue whether the plaintiff was entitled to challenge the decision of the defendant in the High Court a number of issues fell to be considered. In this instance the decision of the defendant not to allow the further temporary registration of the plaintiff was not a decision that required approval by the High Court. The High Court so held in holding that the plaintiff was not entitled to apply pursuant to section 46 of the Medical Practitioner's Act 1978 or otherwise to the High Court to challenge the decision made by the defendant.

Seamus Noonan BL for the plaintiff; Eoin McCullough BL for the defendant.

MR JUSTICE MORRIS outlined the facts of the case. The matter had come before the court as a Special Summons brought pursuant to the Medical Practitioners Act 1978. The plaintiff had primarily sought an order cancelling the decision of the defendant determining that the plaintiff was guilty of professional misconduct and that during the period from 1 January 2000 to 1 July 2000 registration of the plaintiff's name in the general register of medical practitioners should have no effect. Before a determination of the main issue could proceed there arose for determination a preliminary issue namely whether the plaintiff was entitled to apply pursuant to section 46 of the Medical Practitioners Act 1978 or otherwise to the High Court for the cancellation of the decision in question.

Mr Justice Morris stated that the plaintiff was a medical doctor and had been registered as a temporary medical practitioner pursuant to section 29 of the Medical Practitioners Act of 1978 ("the Act"). He had been working as a locum senior house officer in a Dublin hospital. A complaint had been made against the plaintiff by a patient that he was guilty of professional misconduct. On foot of this complaint the fitness to practice committee of the defendant held an inquiry under Part 5 of the Act into these allegations. An oral hearing took place and the fitness to practice committee furnished a report to the defendant.

The defendant subsequently decided that when the plaintiff had completed his then current period of temporary registration on 31 December 1999 he would not be granted further periods of temporary registration prior to 1 July 2000. Furthermore the defendant decided to invoke its powers under the provisions of section 48 of the Act and censured the plaintiff in relation to his professional conduct. In this regard the defendant had formed the opinion that the plaintiff was guilty of professional misconduct.

Mr Justice Morris referred to the arguments that had been advanced on behalf of the plaintiff by his counsel Mr Noonan that sections 46, 47 and 49 of the Act empowered the defendant to impose sanctions upon a medical practitioner which were so grave that they constituted an administration of justice, a function reserved by the Constitution to the courts and that it was for this reason that any decision under these sections must be approved by the High Court. Such a decision might be to erase a medical practitioner's name from the register or during a specified duration decide that the registration of his name in the register of medical practitioners would have no effect. In this respect counsel submitted that the defendant's decision not to register the plaintiff as a temporary medical practitioner for a period of six months was no less serious and indeed might be far more serious than a decision made under one of the previous sections for which court approval would be required. In these circumstances it was submitted that the requirement of court approval must be deemed to exist and that any other interpretation would render the section unconstitutional and that the court should interpret the section in a manner consistent with its constitutionality.

Mr Justice Morris then referred to the arguments raised by counsel on behalf of the defendant. Mr McCullough had submitted that temporary registered medical practitioners were a special case. They came to this jurisdiction for the purpose of training and were subject to limitations which did not apply to other medical practitioners and that the Act clearly envisaged that a degree of control must be permitted for such trainees. It was further submitted that while the plaintiff would find it impossible to practice in this jurisdiction the decision of the defendant in no way interfered with his right to practice medicine in his own country or any other country.

Mr Justice Morris analysed the relevant parts of the Act. Part 3 of the Act provided that there were three forms of registration. These were full registration, provisional registration or temporary registration. The provisions for temporary registration were set out in section 29 and such registration was intended for a person who intended to be in the State temporarily for the purpose of employment in the practice of medicine in a hospital approved by the defendant. In addition such a person must hold a degree, diploma or other qualification which in the opinion of the defendant afforded sufficient guarantee that he had the requisite knowledge and skill for the efficient practice of medicine as well as fulfilling other criteria. On being so satisfied the defendant could temporarily register such person in the register for such period as the defendant determined and could extend the period in question.

Mr Justice Morris referred to Part 5 of the Act which made provision for an application to the fitness to practice committee for an inquiry into the conduct of a registered medical practitioner. Such an inquiry could be held in respect of any registered medical practitioner including a temporary registered medical practitioner. The powers conferred upon the defendant included erasure from the register of the name of a medical practitioner or a decision that during a period of specified duration the name of the medical practitioner should have no effect. The medical practitioner had then 21 days beginning from the date of the decision within which to apply to the High Court for cancellation. In addition the defendant could decide to attach such conditions as it thought proper to the retention in the register of any person's name. Again the medical practitioner was empowered to apply to the High Court for the cancellation of that decision. Under Section 49 of the Act, if a medical practitioner was convicted in the State of an offence triable on indictment or outside of the State of an offence which would constitute an offence triable on indictment if done or made in the State, the defendant could decide that the name of the person should be erased from the register. Again the medical practitioner has the right to apply to the High Court for the cancellation of that decision.

Mr Justice Morris referred to the fact that the defendant had one further entitlement which was that it could, following an inquiry and a report of the fitness to practice committee "advise, admonish or censure such person in relation to his professional conduct". Mr Justice Morris was satisfied that this was the power which the defendant exercised in this case. The defendant purportedly invoked its powers under section 48 of the Act and censured the plaintiff in relation to his professional conduct. Mr Justice Morris stated that it was true that independent and separate from any powers which the defendant had under section 48 it had decided that the plaintiff's temporary registration would not be renewed until after 1 July 2000. Mr Justice Morris was satisfied that the defendant had such a power which it derived from its obligation to regulate temporary medical practitioners and not as a power derived under section 48.

Mr Justice Morris held that when the defendant exercised the power under section 48 alone and not in conjunction with any of the powers conferred on it by sections 46, 47 or 49 no right was given to the affected person to apply to the court within 21 days to set that decision aside. That was because the sanction of advice, admonishing and censuring was not of sufficient gravity. Accordingly, Mr Justice Morris decided the preliminary issue by holding that the plaintiff was not entitled to apply pursuant to section 46 of the Medical Practitioner's Act 1978 or otherwise to the High Court for the cancellation of the decision in question.

Solicitors: Arthur O'Hagan (Cork) for the plaintiff; McDowell Purcell (Dublin) for the defendant.