An Affront To Logic And Language - Court Of Appeal Upholds Constitutionality Of The Medical Council Appeal Process
The Court of Appeal has dismissed an appeal brought by an oncology registrar in respect of a Medical Council finding of poor professional performance against him. The Court also found that certain provisions of the Medical Practitioners Act 2007 regulating appeals from the Medical Council are not repugnant to the Constitution and did not violate the appellant's right to a fair trial under the European Convention on Human Rights.

 

The Court of Appeal (CoA) has dismissed an appeal brought by a consultant oncologist (appellant) in respect of a finding against him of poor professional performance (Finding) made by a Medical Council Fitness to Practice Committee (Committee) in 2015.

The appellant, a registrar in medical oncology, was found guilty of poor professional performance for his failure to request basic tests including blood, urine, and kidney function tests when a 28-year-old patient was transferred to his care from a district hospital after a CT scan showed a large, rapid-growing abdominal mass. On consideration of the Finding, the Medical Council imposed the sanction of “advice” in writing but did not impose conditions on his registration. In the absence of conditions being imposed, there was no entitlement under the Medical Practitioners Act 2007 (2007 Act) to appeal the Committee's finding to the High Court.

The appellant subsequently brought judicial review proceedings, to challenge both the Finding and the decision of the Medical Council to impose the sanction. The appellant also challenged the constitutional validity of sections 71 and 75 of the 2007 Act which precluded him from appealing the finding, and their compatibility with the right to a fair trial under the  European Convention on Human Rights (ECHR). 

The High Court (Court) dismissed the judicial review in 2018. The Court held that the Finding could not be said to be irrational or unreasonable, and having regard to the wording of Article 6 EHCR, refused the application for a declaration of incompatibility.  The appellant appealed to the CoA.

Decision of the Court of Appeal

(i) Certiorari 

Ms Justice Aileen Donnelly, on behalf of the CoA, stated that the issue was whether the Court was justified in its conclusions that there was evidence before the Committee on which it could reach the decision that the doctor was guilty of poor professional performance.

The CoA held that the suggestion of insufficient evidence from which the Committee could reach a finding of poor professional performance against the appellant could "only be described as an affront to logic and language". The CoA found that the decision reached by the Committee was rational, reasonable, and proportionate to the gravity of the allegation, as was the imposition of the sanction. The CoA observed that 

"there is nothing inherently disproportionate in a finding of poor professional performance based upon a single incident or in such a finding where the sanction would not impact upon a doctor's registration".

(ii) Compatibility with Constitution and ECHR

The CoA rejected the appellant's argument that sections 71 and 75 of the 2007 Act were repugnant to the Constitution and violated his rights under the ECHR. The CoA held that the appellant's rights were sufficiently protected through the mechanism of an independent decision-making body on the facts (the Committee); the independent decision-making body on the sanction (the Medical Council); and a right to access to the High Court by way of judicial review. It was held that a separate right of appeal on the merits is not a requirement to vindicate the appellant's rights to work and to a good name in the context of the machinery provided.

The CoA found that sections 71 and 75 of the 2007 Act were not repugnant to the Constitution and did not violate the appellant's ECHR rights, noting that the right to bring judicial review proceedings are sufficient protection where there has been a fair hearing before an independent and impartial body.

Conclusion 

The decision by the CoA reaffirms the position that a finding of poor professional performance will not be disproportionate simply because the conduct complained of was a single incident or activity. On the facts of this case, the CoA was of the view that the Committee had sufficient evidence before it to base its decision, which was held to be rational, reasonable, and proportionate to the gravity of the allegation made.

The lack of a right to appeal in the absence of conditions being imposed on a doctor’s registration, has been addressed under the Regulated Professions (Health and Social Care) (Amendment) Act 2020 which permits an appeal to the High Court where the sanction of advice, admonishment or censure alone are imposed. However, the new provision has yet to be commenced.  

Ahmed v Fitness to Practise Committee of the Medical Council & Ors [2021] IECA 214.

 

Contributed by Barry Murphy

 

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