Barry v. Medical Council [1997] IEHC 204; [1998] 3 IR 368 (11th February, 1997)

[ Home ] [ Databases ] [ World Law ] [ Multidatabase Search ] [ Help ] [ Feedback ] [ DONATE ] High Court of Ireland Decisions You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Barry v. Medical Council [1997] IEHC 204; [1998] 3 IR 368 (11th February, 1997) URL: https://www.bailii.org/ie/cases/IEHC/1997/204.html Cite as: [1997] IEHC 204, [1998] 3 IR 368 [ New search ] [ Printable RTF version ] [ Help ] Barry v. Medical Council [1997] IEHC 204; [1998] 3 IR 368 (11th February, 1997) High Court Barry v Medical Council And Fitness To Practise Committee Of The Medical Council No 369 JR February 1997 COSTELLO P: 1. In these proceedings the applicant, Dr Barry, seeks an order of certiorari quashing a decision of the Fitness to Practise Committee of the Medical Council made on the 11 November 1996 in the course of an inquiry under Part V of the Medical Practitioners Act 1978 by which the Committee decided to hold the inquiry in private contrary to Dr Barry's wishes. The applicant applied ex- parte by a grounding statement and affidavit sworn the 24 November 1996 for liberty to institute these proceedings. Leave was refused. This refusal was appealed to the Supreme Court and that court on the 13 December 1996 ordered that the appeal be allowed and leave was granted on the following grounds: (a) "That the applicant having required the Fitness to Practise Committee to hold its inquiry in public the said Committee was not entitled to rule that the whole of the said inquiry should be held in private. (b) That the proceedings were prosecuted and the decision made in circumstances which were inconsistent within the objective separation of functions of prosecutor and adjudicating tribunal". It was further ordered that the application be made by originating notice of motion. This motion was dated the 6 January 1997 and was heard on the affidavit of the applicant sworn on the 24 November 1996, a statement of opposition of the 20 January 1997 and affidavits of Dr Hone (the Committee's chairman) and Mr Lea (the Council's Registrar). An affidavit of discovery was filed and it was agreed that the document exhibited in it should be admitted in evidence without formal proof. THE MEDICAL PRACTITIONERS ACT 1978. To understand the issues which have been raised I should briefly refer to the relevant provisions of the 1978 Act. The Act established a Medical Council and provided for the establishment by the Council of a Fitness to Practise Committee with functions set out in Part V (sections 3 and 13(2)(b)) of the Act . The chief officer of the Council is known as the Registrar (section 2). The Council or any person may apply to the Fitness to Practise Committee for an inquiry into the conduct of a registered Medical Practitioner on the grounds set out in section 45 (1) of the Act . The application is considered by the Fitness to Practise Committee subject to the provisions of the Act . The Committee may decide that there is not sufficient cause to warrant the holding of an inquiry, and if they do, they inform the Council of that decision and the Council having considered the matter may either decide that no further action shall be taken in relation to the matter or may direct the Committee to hold an inquiry. If the Committee decides that there is a prima facie case for holding an inquiry the Committee must proceed to hold the inquiry. The person who is the subject of it must be informed of that fact and of the nature of the evidence proposed to be considered at it and he must be given a full opportunity of being present at the hearing and being represented and heard (section 45). The Registrar or "any other person with the leave of the Committee" presents the evidence at the inquiry. On completion of the inquiry the Committee embodies its findings in a report to the Council specifying the nature of the application, the evidence given and any other matter in relation to the registered medical practitioner which they may think fit to report as regards the alleged professional misconduct, including its opinion as to the allegations made and the fitness or otherwise of the practitioner to engage in the practise of medicine (section 45). Where the practitioner has been found by the Committee to be guilty of professional misconduct or to be unfit to engage in the practise of medicine the Council may decide that his name should be erased from the register or that the registration of his name in the register should not have effect during a specified period (section 46). The Council may attach such conditions as it thinks fit to the retention in the register of a person who is entered therein or advise, admonish, or censure such person in relation to his professional conduct (sections 47 and 48). In the event of a decision by the Council under section 46 to the effect that the name of a person should be erased from the register or that the effect of his registration should be suspended that person may apply to the High Court within 21 days to cancel the decision and upon such application the High Court may either cancel the decision or direct the Council to erase the person's name from the register or direct that during a specified period the registration of the register shall not have effect. Similarly, in the event of a decision by the Council under section 47 to attach conditions to the continued registration that person may apply within 21 days for the cancellation of that decision and the High Court may cancel the decision or direct the Council to attach such conditions as the court thinks fit to the retention of the name of the person on the register (section 49). If the Council makes a decision under either section 46 or and in the absence of an application by the practitioner within 21 days for the cancellation of that decision the Council may apply ex-parte to the High Court for confirmation of the decision. In those circumstances, unless it sees good reason to the contrary, the High Court shall confirm the decision and, in the case of a decision under section 46 , either direct the Council to erase the name or, as the court may seem fit, direct the suspension for a specified period of the registration; in the case of a decision under section 47 the court may direct the Council to attach such conditions as the court may specify to the retention of the name of the person on the register (section 46). Unless the Committee has found a person guilty of professional misconduct or unfitness to engage in the practise of medicine, their findings shall not be made public without his consent (section 45). Under section 51 , whenever the Council is satisfied that it is in the public interest to do so it may apply (before any inquiry is held) to the High Court for an order that the registration of any person in the register shall not have effect for a specified period. The application may be made in a summary manner and shall be heard in-camera. It will be noted that (a) the Committee's findings have no legal effect on the doctors right to practise, (b) the Council's decision on the Committee's findings has no legal effect on the doctors right to practise until confirmed by the High Court, (c) the High Court, if the doctor so applies, may cancel the decision of the Council or vary it. If he/she makes no such application the Council's decision still requires to be confirmed by the High Court. THE FIRST ISSUE. (a) The Committee's decision. As the Committee's decision is impugned and as the reasons for it were set out in some detail, I should quote it in full. It reads as follows. "One, the Committee is of the opinion that the Medical Practitioners Act 1978 contains no provision making it mandatory for the Fitness to Practise Committee to hold inquiries pursuant to the provisions of Section 45 thereof in public or indeed in private. It is noted that the scheme of the Act , however, seems to envisage a private hearing -- and this is borne out by proceedings to date before the Fitness to Practise Committee, which are inevitably (at the request of the parties) held in private. Two, the Committee is therefore, of the opinion that it has a discretion as to whether it ought to accede to the request made on behalf of the medical practitioner to have this inquiry held in public. Three, the Committee has considered the submissions made by and on behalf of the medical practitioner and on behalf of the Registrar, and has, in exercising its discretion, had regard to all arguments made, and has in particular considered: (a) the necessity to ensure that members of the public can, freely without repercussions, make complaint regarding the competence or behaviour of their medical practitioner; (b) the necessity to protect as best it may the confidentiality enjoyed by a patient and which arises from the doctor/patient relationship; (c) the nature of the allegations/complaints made in this inquiry against the medical practitioner; (d) the likely effect on the administration of justice of deciding to hold the inquiry in public; (e) the powers held by the Committee to protect the private lives of the parties to the inquiry should the same be held in public; (f) whether or not bias will result in the event of a private hearing being directed; (g) the protection afforded to the medical practitioner by way of an appeal to the High Court under provision of Section 47 of the Act . The Committee is of the opinion that the principles of natural justice and fair procedures require this Committee to direct that this inquiry be held in private and in so doing it is satisfied that it is complying fully with the statutory provisions of the Medical Practitioners Act, 1978 , and is acting with regard to the constitutional rights conferred on citizens by the provisions of Bunracht na hEireann, and is further acting in accordance with the provisions of Article 6.1 of the Convention of Human Rights." (b) The applicant's case I can summarise the applicant's case as follows. It is claimed that the applicant has a constitutional right that fair procedures be adopted by the Committee (by virtue of Article 40.3 of the Constitution); that fair procedures require that the proceedings of the Committee be held in public; the Committee's decision not to hold them in public was ultra vires its powers because it constituted a breach of the applicant's constitutional rights. The court should therefore quash it. The applicant's case that in order that the Committee's procedures be fair the hearing should be heard in public is based in the main on the provisions of Article 6.1 of the European Convention on Human Rights. This provides as follows; "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic state, where the interests of juveniles or the protection of the private lives of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice". The applicant refers to the construction of this Article to be found in the decision of the European Court of Human Rights in Diennet v France (21 EHRR 554 ). That case related to an application by a general medical practitioner who was subject to disciplinary proceedings before the French Medical Association. He was found guilty by the Disciplinary Tribunal and disqualified from practising medicine for three years. He complained, inter alia, that the disciplinary proceedings were not held in public and therefore breached Article 6(1). The court held that it was settled case law that disciplinary proceedings in which the right to continue to practise medicine as a private practitioner is at stake give rise to "contestations (disputes) over civil rights" within the meaning of Article 6(1) and that the Article applied to the circumstances of the case. It held that whilst the need to protect professional confidentiality and the private lives of patients might justify holding proceedings in camera such an occurrence must be strictly required by the circumstances and that in the instant case there was no reason to suppose that any confidences would be mentioned during the hearing. It suggested that if it became apparent during the hearing that there was a risk of a breach of professional confidentiality or intrusion on private life the tribunal could have ordered that the hearing should continue in camera. Accordingly there was a breach of Article (6)1 in that the doctor did not receive a "public" hearing before the Regional Council and the Disciplinary Section of the National Council. The applicant in this case, of course, accepts that the Convention is not part of Irish domestic law but it is submitted that in giving effect to the notion of fair procedures in the inquiry held in this case the court should be guided by internationally accepted norms enshrined in the Convention and should apply them when considering the procedures adopted by the Committee. It is claimed that the courts should recognise these norms when determining the standards of fairness which should receive constitutional recognition. The applicant's argument that the norms established by the Convention should apply is subject to one qualification, and it is a significant and considerable one. Article 6(1) does not confer an absolute right to a public hearing in all circumstances where the Article applies. The right is considerably qualified. In particular the press and public may be excluded from all or part of a trial when (a) "the protection of the private lives of the parties so require" and (b) "to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interest of justice". The applicant submits that the exception referred to at (a) is too extensive and in the circumstances of this case the right can only be denied at such time during a public hearing as evidence is being given of a confidential nature relating to the doctor/patient relationship and not otherwise. Constitutionally- based fair procedures required that the inquiry be held in public it is said and that it be held in camera only at such times as that evidence is being taken. Because the decision did not so provide it was ultra vires and void. The applicant's second submission was that the Committee's decision was ultra vires the statute and therefore void. I will deal with this later -- I must first consider the submissions based on the Constitution and the Convention. (1) The Constitution and the Convention. It is important to note precisely the applicants case. The Constitution provides (Article 34) that justice is to be administered in public, save in limited cases prescribed by law. It is not claimed that the Committee breached this Article, nor is it claimed that the Statute infringes this Article. This is because the statutory provisions to which I have referred and the role of the court (which, of course, sits in public) in the procedures they contain mean that justice is in fact administered in public in the High Court and neither the statute or the Committee hearings, if held in camera, render the proceedings constitutionally infirm (in re M [1984] IR 479: M v Medical Council [1984] IR 485). Neither does the Committee's decision amount to a breach of Article 6(1) of the Convention. Firstly the "determination" of the "dispute" in this case is made by the Court sitting in public (not by the Committee or the Council). Secondly, the case-law of the European Court has established that the Article does not require (i) that for all stages of proceedings in which rights are determined should be held in public and (ii) there is no breach of Article 6(1) if there is an appeal to an appellate court from a disciplinary tribunal which has sat in private provided the appellate court sits in public and has jurisdiction to determine questions of fact as well as law (see Weber v Switzerland 12 EHRR 508 and Diennet v France 21 EHRR 554 ). As in this case the High Court is not merely exercising an appellate jurisdiction but will hear all the evidence as if it was a court sitting at first instance should the doctor object to the Committee's findings and the Council's decision there can be no breach of Article 6(1). However, the fact that there is no breach of Article 6(1) of the Convention or Article 34 of the Constitution does not determine the issues in this case. The Constitution requires (by Article 40(3)) the Committee to adopt fair procedures and if it does not do so then its decision will be ultra vires, even though it may not breach the Convention or Article 34 of the Constitution. However, the fact that the statutory procedures permit a doctor who is dissatisfied with the Committees findings to obtain a public hearing before a court is a factor to be taken into account when determining whether the absence of public hearings before the Committee should be regarded as being unfair. (d) The Committee's decision in the light of the Constitution and the Convention. The Committee decided (a) that it had a discretion under the 1978 Act as to whether it could hold its hearings in public or private and (b) that in the exercise of this discretion it should hold them in private. Its decision that it had a statutory discretion in the matter was a correct one (for reasons I will explain later) and I will now consider whether or not it validly exercised that discretion in the light of the requirements of the Constitution. It is clear that the Committee was well aware of its constitutional duty to adopt fair procedure and also of the provisions of Article 6(1) of the Convention. In reaching its decision it referred to seven aspects of the case which it took into consideration. In particular it was of the view that it had power to protect the private lives of the parties to the inquiry, an obvious reference to the Convention's qualification to the right to a public hearing. The statements of the Complainant's evidence make it perfectly clear that most intimate private matters would be disclosed to public scrutiny should the hearings be public. The Convention accepts that the right to a public hearing is one that should give way to the rights to privacy of others should a public hearing infringe them. The Committee correctly in my opinion applied the principles contained in Article 6(1) to the facts of this case and so its proceedings were not unfair for failing to apply internationally accepted norms. There is a second reason why the Committee's decision did not infringe the Convention. The Convention recognises that there may be special circumstances where publicity would prejudice the interest of justice and if that is established a claim to a public hearing cannot be sustained. The Committee was aware of this provision and concluded, (correctly, in my view) that this qualification also applied in this case. It is in the interests of justice that members of the public freely and without repercussions on them make complaints regarding the competence of the behaviour of their medical practitioners and the likely effect of public hearings on the administration of justice if the hearings were held in public is a matter which the Committee can properly take into account. The evidence, which I accept, is that there is a risk in this case that the proceedings against the applicant might not take place at all if the hearings were held in public. A number of complainants have already indicated an unwillingness to proceed from feelings of embarrassment at having the matters they referred to discussed even in a private inquiry. One complainant has indicated that she wishes her privacy to be completely respected. It seems to me that the nature of the complaints against the doctor in this case constitute special circumstances and mean that there is a strong probability that a decision to hold the inquiry in public would prejudice the interest of justice. In reaching this conclusion neither the Committee or this court is pre-judging the veracity of the evidence to be heard or failing to give to the applicant the benefit of a presumption of innocence (as has been urged on his behalf). The Committee (and the court) is merely applying a procedural rule to the facts of this case which the Constitution permits the legislature to apply to court proceedings' when it thinks fit to do so. It carries no implication of wrongdoing. I turn then to the applicants submission that the international norms provided for in the Convention should be modified in this case and that the right to a public hearing should only be denied during a hearing which is held in public when confidential evidence relating to the doctor/patient relationship is being given. This means that most of the hearing would be in public, the identity of the witnesses would be known, the nature of the complaints made public, and only for a strictly limited time should the Committee hold its hearings in camera. I cannot agree that such procedures would be fair. Accepting for present purposes that there is a right to a public hearing before a professional disciplinary body it seems to me that when this right conflicts with a right to privacy as it would in this case the latter should in the circumstances of this case prevail. (e) The decision and the 1978 Act. The applicant's second submission is that the Committee's decision was ultra vires the 1978 Act. It is said that (a) the Committee misconstrued the 1978 Act by holding that it had a discretion to hold the inquiry in private or public, (b) that the only discretion that the Committee had was to hold such part of the inquiry that might relate to confidential patient-doctor relationship in camera and (c) its decision was accordingly ultra vires. The Statute is silent as to whether or not the hearing should be in private or in public but it seems to me that the Committee properly construed the Statute by holding that it had a discretion in the matter. Section 45(5) of the Act provides that the findings of the Committee and the decision of the Council on any report made to it by the Committee "shall not be made public" without the consent of the doctor, unless the doctor has been found guilty of professional misconduct or unfitness to engage in the practice of medicine. This implies that the proceedings before the Committee and the Council may be held in private. The statute does not prohibit a public hearing and if requested by the doctor it may comply with such a request. Accordingly, a discretion exists. I have already held that there is no obligation imposed by the Constitution on the Committee to hold its sittings in public and accordingly there is no consideration based on the constitution which would require a construction of the Act otherwise than is to be ascertained by the provisions of the statute itself. A further submission was made based on the facts of this case. It was said that even if the Committee had a discretion it wrongly exercised it and for this reason it should be quashed. But this requires the court to act in effect as a court of appeal from the Committee's decision on the facts and in these proceedings the court has no jurisdiction to do so. But because serious allegations of personal and professional impropriety are made I think it is proper for me briefly to express my views on the allegations. (1) Reference was made to the Council's application under section 51 of the Act before the inquiry was held for an order that for a specified period the registration of the applicants name on the medical register would have no effect. The Act provides that applications under the section are to be held in camera but the court is empowered to make such orders as it considers appropriate on the application. In this case the court permitted the Council to make a public statement. Before the application to the Court there had been widespread publicity about Dr Barry's alleged conduct. The Council considered that to maintain public confidence in the profession it was necessary to make known the fact that appropriate steps had been taken on foot of complaints made against him and the press statement made clear that Dr Barry would have an opportunity to answer complaints. It was made under the authority of and in compliance with the court's order. I do not consider that the fact that such an order was sought and obtained is a reason why the Committee should have granted a public hearing. It was widely known that serious allegations had been made against Dr Barry, but that is not a reason why the inquiry into them should be a public one. If the findings were favourable to him he could have them published. If they were not he could apply for a public hearing before the High Court. (2) It was further claimed that a public hearing was required so that the applicant would have the protection of a public hearing against misconduct by the Council and its representation. It was claimed that the conduct of the Council as "prosecutor and adjudicator" at the inquiry needed to be "tempered by public scrutiny" and that the conduct of the "respondents" prior to the inquiry demonstrated that there was a vital need for the protection of a public hearing. The conduct complained of was, as formulated by counsel as follows; "the public naming of the applicant in circumstances forbidden by section 51; the soliciting of complaints; grossly improper public comment on a case yet to be determined which was calculated to injure the applicant; a refusal to deal fairly with legitimate requests for ruling; a refusal to timely ascertain and provide a statement of the number and composition of the set of complaints; a refusal to hear the applicants lawyers on the issue of dates of intended times of hearings; unilateral adjournments and fixing of dates of intended plenary hearings; the incestuous relationship between the Council, the Fitness to Practise Committee and the prosecutor". I have examined the evidence in respect of each of these allegations of misconduct. I consider each of them to be without foundation. I do not consider that the applicant required any protection from the risk that the Council, or the Registrar or the solicitor and counsel employed by the Registrar would be guilty of misconduct and that a public hearing to obviate it was required. The Committee correctly exercised its discretion in my opinion. The challenge to the decision of the Committee on the first issue therefore fails. THE SECOND ISSUE. The second issue on which leave to apply for Judicial Review was granted is that; "The proceedings were prosecuted and the decision made in circumstances which were inconsistent with any objective separation of functions of prosecutor and adjudicating tribunal". This is also a claim that there was a breach of the constitutional right to fair proceedings and that accordingly the Committee's decision was an ultra vires one. It is alleged that the procedures adopted prior to the Committee's decision were unfair with the result that the applicant did not obtain an impartial hearing. In particular it refers to the role played in the inquiry of the Council's Registrar and solicitor. There are two preliminary matters to which I should refer. The statutory provisions relevant to this issue should be kept in mind. The Registrar is the chief officer of the Council (section 2). The Council may apply to the Fitness to Practise Committee for an inquiry into the conduct of a registered medical practitioner on stated grounds (section 45). The Registrar is required to present to the Committee the evidence relating to the allegations of misconduct or unfitness to practise (unless the Committee has given leave to some other person to do so) (section 45(3)(b). The Committee embodies its findings in a report to the Council (section 45(3)(c). In considering whether there was any impropriety in the Registrar's conduct and in that of the solicitor he instructed I think it is important to understand the relationship between the Registrar and the Committee. It is not accurate and is potentially misleading to refer to the Registrar as the "prosecutor" of the proceedings before "an adjudicating tribunal" because this suggests that the proceedings are analogous to those of a criminal trial and the Committee's role is analogous to that of a presiding judge. In fact the proceedings do not constitute a "trial" -- they are an "inquiry" in which the Registrar presents evidence on which a report is made incorporating findings. The relationship between the Committee and the Registrar is closer to that of Chairman of a Tribunal established under the Tribunals of Inquiry (Evidence) Act, 1921 and solicitor and counsel employed by him to present the evidence rather than that which exists between prosecutor and the judge in a criminal trial. Explicitly counsel for the applicant stated that no criticism was to be implied of the solicitor, the Registrar or the members of the Committee -- the applicant's case is that on an objective test there was no adequate separation of functions, that the procedures were unfair, and objectively, the Committees' impartiality was compromised. A number of criticisms were made in the applicant's affidavit but I will examine those submitted at the hearing, as I understand that they are the criticism now relied on to support the applicant's case. (1) It was claimed that the solicitor for the Registrar was and is the solicitor for the Council and the Committee. The firm of John M McDowell & Co have acted for a number of years as legal advisor to the Medical Council and the firm advises the Council in relation to the discharge of its functions under the 1978 Act. When a Fitness to Practice Committee comes to the view pursuant to section 45(3) of the Act that there is a prima facie case for holding an inquiry then under section 45(3)(b) the Registrar is required to present the evidence to the Committee. The Committee expressly permitted the Registrar to retain solicitor and counsel to assist in the presentation of the evidence. The Registrar retained Messrs John M McDowell & Co for this purpose. Contrary to what is alleged, the firm was not solicitor to the Committee. I can find no unfairness in the Council's chief executive employing the Council's legal adviser to assist him. (2) The Fitness to Practice Committee of the Council had the benefit of the services of senior counsel to advise it as legal assessor and the Registrar's solicitor did not advise the Committee -- it had its own independent legal advisor, Miss Mary Irvine SC. A complaint is made that the solicitor for the Registrar "retained the legal assessor to the Committee". Practical arrangements would, of course, have to be made to appoint a legal assessor and to inform the legal assessor of the practical arrangements in relation to the inquiry. This function was carried out by Mr McDowell. There is no evidence to suggest, nor has it been suggested, that Mr McDowell sought in any way to influence the legal assessor as to the views which she should form and no reasonable person could, objectively, come to such a conclusion. The Council had obtained, some time previously, counsels opinion as to whether or not the Committee's hearings should be held in public or private and this opinion was furnished, along with other documents, to the legal assessor. Privilege in respect of this opinion was waived and I have read it. The reason why this was given to the legal assessor was that it had already been furnished to members of the Council (including those sitting on the Committee of inquiry) and it was considered proper that the legal assessor should be informed of the opinion which had already been made available to the members of the Committee. I cannot see how the furnishing of this opinion could have in any way influenced the legal assessor in deciding otherwise than in an objective way the issues of law on which she would be required to advise the Committee. She would be well aware that contrary opinion would be expressed at the hearing and that both sides of the argument would be available to her before her advice was tended to the Committee. It is further claimed that the solicitor for the Registrar "conducted himself in relation to the legal assessor in a manner which was inconsistent with the office and function of legal assessor". I have considered the evidence on which this claim is based and I do not think it is justified. The only contact between the solicitor and the legal assessor was as I have just indicated and this did not in fact, nor could it objectively be regarded as, an unfair procedure. (3) A complaint was made that counsel for the Registrar received instructions from the solicitor "who represented both the Council and the Prosecutor and also the Committee". As pointed out already the solicitor instructing counsel was not the solicitor for the Committee. When instructing counsel he was instructing him for the purposes of enabling the Registrar to carry out a statutory function. I can find no unfairness in this procedure. It is also claimed that the procedures were unfair because the solicitor "attended to advise the Committee at various stages of the proceedings in the inquiry". The records establish that Mr McDowell did attend some of the meetings of the Committee prior to the holding of the inquiry but he attended merely for the purpose of making practical arrangements for the hearings and did not express views on the issues which might be before the Committee. I cannot regard the fact that Mr McDowell attended these meetings as in any way constituting an unfair procedure or justifying suggestion that the procedures would prejudice the Committee's impartiality. Similarly, the records show that the Registrar attended meetings of the Committee but again there is nothing to suggest that he advised the Committee in any way in relation to the issues which were before it. (4) Criticisms were also made relating to counsel retained by the Registrar. It was claimed that the Committee "could not but regard the submissions of counsel for the Registrar as a reflection of the views of the Council on the issue of a public or secret hearing and as reflecting the views of a trusted and established legal advisor in whom the Council and the Committee had for many years reposed the greatest confidence". I do not think that it is reasonable to suggest because submissions to the Committee were made by a counsel instructed by a solicitor who had acted as advisor to the Council for many years this would prejudice the Committee in favour of the views he was advancing. No unfairness was involved by what was done and it could not objectively be thought that the Committee's impartiality was affected by it. It was, in addition, claimed that counsel for the Registrar "adopted an argument which admitted of no interest whatsoever of the defendant in a public hearing". I do not think that the argument of counsel on the legal issue involved (which I have read) could possibly constitute a ground for setting aside the Committee's decision. (5) It was pointed out that the Committee by section 45(3)(b) could appoint some person (other than the Registrar) to present to the Committee the evidence of alleged professional misconduct or unfitness to practise and that the failure to appoint an independent person "to act as prosecutor" constituted unfairness. It was claimed that the Registrar was subject to the control of the Council and the Registrar was not a fit person to be appointed under the section. I do not think this criticism is valid. The Registrar's task was to present the evidence. The fact that through counsel submissions were made to the Committee on legal aspects of the case in accordance with legal advice previously obtained by the Council does not result in any unfair procedures. A person appointed other than the Registrar by the Committee under the sub-section would carry out his functions in the same way as the Registrar did. (6) There is a general claim that "the dealings between the members of the Fitness to Practice Committee and the Registrar his servants or agents, and the said solicitor were inconsistent with any objective separation of functions of Prosecutor and Adjudicating Tribunal". I have dealt with the specific matters raised before me. In relation to this general complaint I should say that I have accepted the evidence of Dr Hone and Mr Lea the Registrar. I am satisfied that the Committee was aware of its obligation to come to its decision on the basis of the evidence and the submissions before it, that the Committee gave careful consideration to the submissions and this is evidenced by the terms on which its decision were explained. I accept the evidence that the Committee had not any pre-determined attitude before the hearings took place and that its members did not give any special weight to the argument presented by the Registrar because of his relationship with the Council, or to the fact that the solicitors retained by the Registrar are also advisors to the Council. I am satisfied that the provisions of the 1978 Act provide for fair procedures, that the Act was implemented fairly and that objectively no reasonable person could consider that the acts of which complaint is made could prejudice the impartiality of the Committee. I must therefore decline to quash the Committee's decision on the grounds raised in the second issue. It follows, therefore, that this application will be dismissed. © 1997 Irish High Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: https://www.bailii.org/ie/cases/IEHC/1997/204.html