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A. (A.) v. Medical Council [2001] IEHC 211 (11 October 2001)

THE HIGH COURT

JUDICIAL REVIEW

2000 No. 120JR.

BETWEEN

A. A.

APPLICANT

AND

THE MEDICAL COUNCIL

RESPONDENT

 

JUDGMENT of Mr. Justice Ó Caoimh delivered the 11th day of October, 2001

1.      By Order of the High Court made by Mr. Justice O’Higgins on the 13th day of March, 2000 the applicant was given leave to apply by way of Judicial Review for the following reliefs

(i) An order prohibiting the respondent from holding an Inquiry under Part V of the Medical Practitioners Act, 1978 notice of which was served upon the applicant by notice dated the 21st day of February 2000 into allegations of professional misconduct on the part of the applicant.

(ii) A declaration that the holding of such an inquiry into allegations of assault and/or indecent assault and/or sexual assault on Ms. J. H. on or about 28th July 1997 and/or allegations of assault and/or indecent assault and/or sexual assaults by the applicant on M. O’S. on or about the 28th July 1997 amount to a breach of natural justice.

(iii) A declaration that the conducting of the said inquiry infringes the principle of double jeopardy, a fundamental principle of fair procedure and natural justice.

(iv) A declaration that the respondent is estopped from so proceeding to conduct an Inquiry into the said allegations.

(v) A declaration that the matters being the subject matters of the proposed said Inquiry are res judicata

The grounds upon which relief is sought are as follows:-

i That the applicant was tried before a judge and jury at the Dublin Circuit Criminal Court on Bill Number 1017 of 1997 between the 18th day of January, 1999 and the 5th day of February, 1999 on charges that the applicant did sexually assault M. O’S. and J. H. on or about the 28th day of July, 1997 at the Mater Misericordiae Hospital, Eccles Street, in the County and City of Dublin. The applicant was acquitted on both charges.

ii That the proposed inquiry by the Fitness to Practice Committee of the Medical Practitioners Act, 1978 amounts to a breach of fair procedures.

iii That the said proposed inquiry attempts to set at naught the verdict of a jury sitting at the Dublin Circuit Criminal Court.

iv That the matters to be inquired into at the proposed said inquiry are the same matters which were properly tried before a judge and jury at the Dublin Circuit Criminal Court

v That the respondent is estopped from inquiring into matters which were lawfully determined in the course of a criminal trial at the Dublin Circuit Criminal Court before a judge and jury of the said Court in February of 1998.

vi That the said proposed inquiry is an attempt to retry the applicant on the same facts in relation to the same events which is an oppressive and unfair procedure.

vii That in instituting an inquiry purporting to be pursuant to Part 5 of the Medical Practitioners Act, 1978 into alleged professional misconduct on the part of the applicant, the respondent is acting contrary to the rules of natural and constitutional justice and is a serious detriment to the applicant

viii That the respondent’s refusal to cease the said inquiry amounts to a failure on its part to vindicate the applicant’s right to constitutional justice and fair procedures.

2.      The applicant has sworn an affidavit in which he sets out his medical qualifications as a medical doctor having qualified in Lahore, in Pakistan in 1993. It appears from his affidavit that he was a Surgical Intern at the Service Hospital in Lahore, in Pakistan from the 12th July, 1993 until the 11th January, 1994 and was a Medial Intern at the same hospital until the 11th of July, 1994. Thereafter he was a Medical Officer in Surgery in Pakistan until the 5th December, 1994 when he was in general practice until the 30th February, 1996. From 9th March, 1996 until 15th September, 1996 he was a Senior House Officer in Anaesthesia at the Services Hospital, Lahore in Pakistan. He says that he also worked as a General Practitioner.

3.      The applicant says that he married a British National in October, 1992. She returned to the United Kingdom on the 8th of August, 1993 and gave birth to a baby child on the 30th September, 1993. The applicant says that he intended joining his family in England on the 13th November, 1994 on an immigrant visa sponsored by his wife but having arrived at Heathrow Airport the Immigration Authorities told him that the sponsorship for his visa had been withdrawn by his wife. He says that in these circumstances he was returned to Pakistan. He says that having returned to Pakistan he determined that he wished to return to the West and further his studies there and in addition to be in a position to have contact with his wife and child. He says that he was advised by a colleague in Pakistan that he should go to Ireland where he might have the opportunity to get post graduate experience and at the same time be in a position to visit his family. He says that in those circumstances in October of 1996 he came to Ireland after which he visited the Navan Hospital and got a Supernumerary post in Anaesthesia in Our Lady’s Hospital, Navan and on the basis of this he received registration with the Medical Council of Ireland. He says however that the hospital required a Doctor Trainee Visa in Ireland but the Visa authorities required him to leave the country and apply for a Doctor Trainee Visa to the same Dublin office but from outside the jurisdiction. He says that in those circumstances he went to live in Paris for two months but was again refused a visa from the Irish authorities.

4.      In the event the applicant returned to Pakistan and ultimately received a Doctor Trainee Visa and returned to Ireland on the 25th April, 1997. He says that the position in Our Lady’s Hospital in Navan was no longer available but in the first week of May 1997 he made contact with the Rotunda Hospital seeking a post. He was instructed to attend for an interview at the Mater Hospital on the next day and having attended the said interview he says he was given the post of Supernumerary unpaid Senior House Officer to run from the 1st July, 1997. He says that before resuming his studies in July of 1997 he spent a short period at the Mater Hospital as an observer.

5.      He says that he commenced his duties at the Mater Hospital on the 6th July, 1997.

6.      The applicant says that on the 28th July, 1997 he was on duty at St. Joseph’s ward in the Mater Hospital and was required to conduct pre-operative examinations on a number of patients due for surgery on the following morning. He says that he conducted these in accordance with what he understood to be the procedure, not having received any formal instruction from the Mater Hospital, and that the said examinations were in his professional opinion proper and necessary examinations. He says, however, that female patients whom he had examined made allegations to staff at the hospital and ultimately to the Gardai alleging that he had sexually assaulted them. He denied the allegations and says that he was charged thereafter on the 7th August, 1997 and spent the following period up to the conclusion of a criminal trial in custody not having been able to raise the requisite securities for bail. He says that he was charged on two counts of having sexually assaulted the two female patients. He says that the trial of these offences came on for hearing before a Judge and Jury at the Dublin Circuit Court on the 14th January, 1999 and the Jury having considered the evidence returned verdicts of not guilty on both counts.

7.      Following his acquittal the applicant was released from custody and since his release he has actively sought to continue his medical practice. In order to do so he says that he is required to have registration from the Medical Council. He says that his previous registration elapsed through the passage of time. He says that the respondent’s Council has indicated that it has referred his application to the Fitness to Practice Committee on a complaint of professional misconduct against him. He says that he received notification from the Medical Council on the 28th October that at its meeting dated the 26th October the Fitness to Practice Committee having considered the complaint made against him, decided that there is a prima facie case for holding an inquiry concerning his conduct under Section 45 (3) of the Medical Practitioners Act of 1978.

8.      The applicant points out that by letter of the 21st February, 2000 the Medical Council indicated that the Fitness to Practice Committee would meet on Tuesday the 14th March, 2000 in Dublin to hear an inquiry into the allegations of professional misconduct. He says that the essence of the allegations made to the Fitness to Practice Committee is precisely the same as those the subject matter of the prosecution by the Director of Public Prosecutions previously mentioned herein. He says that he is effectively being asked to meet the same allegations before the Medical Council as he was required to meet before a Judge and Jury at the Dublin Circuit Criminal Court. He says that in those circumstances he believes that the proposed inquiry is both unfair and oppressive.

9.      The applicant states that at the conclusion of the criminal trial, having been found not guilty by a Jury, he assumed that the allegations against him had come to an end. He assumed also that from then on he would be in a position to be able to take up from where he had left off in terms of his medical career as a period of nearly three years had elapsed. He says that he also received a position at St. Luke’s General Hospital in Kilkenny from the 12th July, 1999 but was unable to take up the position having been refused temporary registration from the Medical Council. The applicant says that it is his intention to continue in medical practice and to further his career but that he is unable to achieve same given the allegations made against him and given the passage of time which has elapsed prior to these matters finally being disposed of.

10.      An affidavit has been filed on behalf of the respondent which has been sworn by Mr. Brian Lea, Registrar of the Medical Council. In his affidavit Mr. Lea says that it is a function of the respondent to inquire into allegations of alleged professional misconduct on the part of registered medical practitioners. He says as appears from the Notice of Inquiry served on the applicant it raises allegations of professional misconduct of a serious nature against him. Mr. Lea has exhibited a copy of the Notice of Intention to hold an inquiry under Part V of the Medical Practitioners Act, 1978 which was served on the applicant. This notice indicates the allegations of professional misconduct which are to be the subject matter of this Inquiry and they include

1. Assault and/or indecent assault

2. Sexual assault

3. Undertaking an inappropriate and/or an improper medical examination(s) and/or treatment of the patient in question and/or

4. Undertaking internal vaginal examination(s) without wearing protective gloves and/or

5. Making inappropriate remarks to the patient and/or

6. Making sexual advances towards the patient and/or

7. Subjecting the patient to unnecessary medical examination(s) and/or

8. Failing to treat the patient with due dignity and respect and/or

9. Breaching the trust inherent in the doctor/patient relationship and/or

10. Conducting himself in a manner derogatory to the medical profession.

11.      The further complaints raised relate to a further patient and involve similar allegations with the exception that there is no allegation of making inappropriate remarks to the second patient. In all other respects the allegations relating to the second patient are in identical form to those relating to the first patient.

12.      It appears that, accompanying the notice, the applicant was served with a list of witnesses whom it was the intention of the registrar to request to be in attendance at the Inquiry for the purpose of giving evidence, together with a summary of the nature of their evidence. The list of witnesses numbered 16 and the statements accompanying were in essence reproduced from the Book of Evidence which has been served on the applicant in the context of the criminal trial against him.

13.      Mr. Lea points out the role of the Fitness to Practice Committee of the Medical Council. He points out that allegations of professional misconduct on the part of Registered Medical Practitioners are considered by the Fitness to Practice Committee of the Medical Council. The Committee is a body for whose establishment the Medical Practitioners Act, 1978 specifically provides. Pursuant to Section 45 of the 1978 Act an application for an Inquiry into the conduct of a registered medical practitioner on the grounds of his alleged professional misconduct is considered by the Committee. Where the Committee, after consideration of the application, is of the opinion that there is a prima facie case for holding an Inquiry then it proceeds to hold an Inquiry. The Registrar presents to the Committee the evidence of the alleged professional misconduct with the assistance of solicitor and counsel. On completion of the Inquiry, the Committee embodies its findings in a report to the Medical Council specifying therein the nature of the application and the evidence laid before it and any other matters in relation to the registered medical practitioner which it may think fit to report including its opinion, having regard to the contents of the report, as to the alleged professional misconduct of the registered medical practitioner. The imposition of sanction (if any) is then a matter for the Medical Council.

14.      Mr. Lea has been Registrar of the Medical Council since its establishment in 1978. Over the years since then he has been present at a great number of inquiries conducted pursuant to Part V of the 1978 Act. He points out that when the Fitness to Practice Committee sits for the purpose of conducting an Inquiry it has at all times the assistance of a legal advisor who sits with it but is not a member of the Committee. That legal advisor has invariably been a member of the Senior Bar. Medical Practitioners appearing before the Committee are entitled to be and usually are represented by legal advisors, including counsel. In the course of inquiries questions of law frequently arise and the Committee hears submissions from counsel for the medical practitioner and counsel for the Registrar respectively. With the assistance of its legal advisor the Committee has no difficulty in reaching a determination on questions of this nature as they arise before it in the course of inquiries. Mr. Lea points out that it would be evident that the Committee, in determining such matters, does so in an impartial and independent manner and it is therefore not unusual that the Committee determines such matters contrary to the submissions advanced on behalf of the Registrar. He believes that this is an effective and practical way to deal with issues of this nature and he says that he is furthermore advised by his legal advisors and believes that it is appropriate that issues of this nature should at least in the first instance be determined by the Committee. Mr. Lea points out that in the normal course of events it is only in circumstances where the medical practitioner is dissatisfied with the determination of the Committee that it would be appropriate for him or her to apply to the court for leave to apply for Judicial Review. He says otherwise there is a grave risk that the court would be troubled by premature and unnecessary applications.

15.      Mr. Lea refers to correspondence passing between the parties. The applicant was informed by letter of the 28th October, 1999 that the Fitness to Practice Committee had determined on the 26th October, 1999 that there was a prima facie case for holding of an inquiry into alleged professional misconduct on his part. He says the applicant cannot have been in any doubt as to the nature of the alleged professional misconduct involved. He says that by letters of the 1st November 1999, the 6th January 2000, the 13th January 2000 and the 20th January 2000, the solicitors for the applicant urgently requested an early hearing date of this inquiry owing to the fact that their client was anxious to obtain further periods of temporary registration. As a result, the applicant was facilitated by the hearing of this inquiry being scheduled out of turn for a number of days to commence on the 13th March, 2000 and subsequently altered to the 14th March, 2000.

16.      Mr. Lea says that the case now made was put forward for the first time by the solicitors for the applicant in their letter of the 10th March, 2000. By letter of reply of the 10th March 2000 the solicitors for the respondent protested the apparent change of attitude but invited the solicitor for the applicant to attend before the Fitness to Practice Committee at 9.30 a.m. on Monday 13th March, 2000 to make application to that Committee. He says that the solicitor for the applicant agreed that he would in fact attend with counsel before the Fitness to Practice Committee at 9.30 a.m. on the 13th March, 2000 to make the necessary application. He says that the Committee was meeting to deal with other business but was ready to deal with this application, but, however the solicitor for the applicant neither turned up nor telephoned to explain why he was not attending before the Committee as agreed, but instead leave to apply for Judicial Review was sought from the High Court on the same day.

17.      Mr. Lea says that if the solicitors for the applicant had attended on the 13th March, the Committee would have entertained the very case that is now being made to this Court. He says that he cannot say what the result would have been but clearly it would have been open to the Committee to hold with the applicant or perhaps to hold that it would proceed to hear an Inquiry into some but not all of the allegations in the Notice of Inquiry. These entire proceedings might therefore have been avoided, or in the alternative the object of these proceedings might have been a Notice of Inquiry from which some of the allegations had already been struck out. In the circumstances, he says that he is advised by his legal advisors and believes that the application for leave to apply for/by way of Judicial Review was at best premature and may even have been entirely unnecessary. He says that the applicant ought to have applied in the first instance to the Fitness to Practice Committee and indeed his solicitor agreed on his behalf to do so. It is argued that if the applicant is dissatisfied with the result of such an application that he ought to make application to the High Court on the basis of any determination made by the Committee.

18.      Mr. Lea then proceeds to state that it may be that this Court will see fit to entertain the substance of the Judicial Review application notwithstanding what is already deposed to by him. He says that in these circumstances he wishes to draw to the attention of this Court what he believes to be a fundamental difference between the role of the Fitness to Practice Committee and the Medical Council on the one hand and the role of the judge and jury in criminal proceedings mentioned by the applicant on the other hand. He points out that the Fitness to Practice Committee is inquiring into allegations of professional misconduct and is not concerned with questions of criminality. The criteria for which questions of professional misconduct are judged are entirely different to those that were applicable to the criminal proceedings. Furthermore, he says that if and insofar as any sanction arises following a finding of professional misconduct, it does so not for the purpose of punishing the doctor but rather for the purpose of protecting the public. Mr. Lea believes that the Fitness to Practice Committee is entitled to inquire into the matters set out in the Notice of Inquiry notwithstanding the fact that the same matters gave rise to a criminal trial in which the applicant was acquitted. He believes that the applicant is not being asked to meet the same allegations before the Medical Council as he is required to meet before a judge and jury at the Dublin Circuit Criminal Court and that the proposed inquiry is neither unfair nor oppressive. Mr. Lea further points out that the Fitness to Practice Committee is obliged pursuant to statute to conduct this inquiry. He believes that it is important in the public interest that the Fitness to Practice Committee should be entitled to carry out its statutory function in this regard. The correspondence before this court indicates that on the 22nd of February, 2000 the applicant was advised that four additional witnesses were proposed to be called by the Registrar in the context of the proposed inquiry. These included a consultant anaesthetist, a consultant gynaecologist and two other medical practitioners.

19.      On behalf of the respondent Council a Statement of Opposition has been filed dated the 21st June, 2000 in which the following grounds are set out in opposition to the applicant’s application herein:

1. That the application is premature in that the issues raised in these proceedings could and ought to have been raised by the applicant in the first instance before the Fitness to Practice Committee of the Medical Council.

2. That the proposed inquiry by the Fitness to Practice Committee of the Medical Council does not amount to a breach of fair procedures, does not attempt to set at naught the verdict of a jury sitting at the Dublin Circuit Criminal Court, is not an attempt to retry the applicant on the same facts and in relation to the same events, and is not an oppressive and unfair procedure.

3. That the matters to be enquired into at the proposed inquiry are not the same matters which were properly tried before a judge and jury at the Dublin Circuit Criminal Court.

4. That the respondent is not estopped from enquiring into matters which were lawfully determined in the course of a criminal trial before a judge and jury of the Dublin Circuit Criminal Court, that the respondent is not acting contrary to the rules of natural and constitutional justice to the detriment of applicant, and that the failure of the respondent to cease the inquiry does not amount to a failure to vindicate the right of the applicant to constitutional justice and fair procedures.

5. That the nature of the proposed inquiry, the nature and status of the Medical Council and the Fitness to Practice Committee and the circumstances generally are such that the acquittal of the applicant in the Dublin Circuit Criminal Court is not a bar to the hearing and determination of the proposed inquiry.

6. That the Fitness to Practice Committee of the Medical Council is both entitled and obliged to proceed with the proposed inquiry notwithstanding the acquittal of the applicant in the Dublin Circuit Criminal Court.

7. That if (contrary to the contention of the respondent) there is merit in the grounds put forward on behalf of the applicant, then those grounds can avail the applicant only in respect of some but not all of the allegations set out in the Notice of Inquiry.

8. Further or in the alternative, that if (contrary to the contention of the respondent) there are any allegations in the Notice of Inquiry to which objection can validly be taken, then such allegations can validly be amended so as to render the same appropriate and lawful.

Submissions on behalf of the applicant

20.      Submissions have been made to this court on behalf of the applicant by Mr. Feichín McDonagh SC. He submits that the criminal trial involved in essence one point and that was the belief in the testimony of the complainants.

21.      Counsel had referred this court to a number of authorities in support of the submissions which were made on behalf of the applicant. In the first instance reference was made to the case of McGrath v. Commissioner of An Garda Siochána [1991] 1 I.R. 69. In that particular case the applicant had been charged before the District Court with embezzlement of three sums of money received by him by virtue of his employment which in fact were fines imposed by Court Orders. The applicant admitted that he had not issued official receipts for any of those payments. As a result the Orders of the District Court had been returned to the District Court as unexecuted and persons who had paid their fines had been in peril of being imprisoned on foot of those orders. The applicant was returned for trial before the Circuit Court and was acquitted by a jury on all of the three charges. He subsequently received notification that he was to be charged with breaches of Garda discipline, including three charges of corrupt or improper practice. The particulars alleged failure to account for the three sums of money received by him in the course of his duty which were the subject matter of the criminal charges.

22.      The applicant applied by way of Judicial Review for an order prohibiting the respondent from holding an inquiry into the alleged breaches of discipline. The High Court made such an order in relation to certain of the charges against the applicant. In relation to the charges of corrupt or improper practice the court ordered that the inquiry could proceed provided that the breaches of discipline alleged were confined to charges of merely improper, rather than corrupt or improper, practice. On appeal by the applicant to the Supreme Court it was held by the Supreme Court in dismissing the appeal

1. That to reopen an allegation of dishonesty which has been clearly determined by a jury verdict given on the merits, for the purpose of re-exposing the applicant to the possibility of punishment, amounted to an unfair and oppressive procedure which should be restrained by the court.

2. That it was not necessary in the circumstances for it to determine the question of whether the doctrine of res judicata was applicable to the case.

3. That there was no general principle that an acquittal on a criminal charge, irrespective of the reason for such acquittal, amounted to an estoppel which would prevent a disciplinary inquiry being held into matters arising from the same set of facts. Hederman J. indicated at p. 73 of the report that he came to the conclusion that there was a single point in the case which the jury had to decide - Did the accused act dishonestly? He pointed out that the jury resolved that issue by acquitting the accused. There was no additional factor that could be placed before the disciplinary inquiry. He said he doubted whether a “corrupt” practice is the same as a dishonest one. At the end of p. 73 of the report Hederman J. states as follows

“The object of the criminal proceedings was to establish that the applicant was guilty of dishonest acts which, if established, would have exposed him to punishment. He was acquitted. The object of the disciplinary proceedings is to establish that he was guilty of the same acts as those in respect of which he was acquitted.”

At p. 74 of the report, having quoted from the disciplinary charge against the applicant, Hederman J. continued as follows:-

“If such an allegation is made out at the disciplinary hearing he is again exposed to punishment. Thus he is in effect being retried on issues already determined and he is, once again, exposed to the possibility of punishment. This cannot be done without seeking to set at nought the result of the verdict of the jury. I make a distinction between the consequences that might flow from any purely civil action and the disciplinary hearing procedure. The disciplinary hearing is more serious in its consequences than a mere civil action”.

Having referred to the charge of improper practice against the applicant in that case Hederman J. continued as follows

“Such an allegation relates to matters of internal discipline in the Garda Siochána and is not in any way to be equated with the criminal charges of which the respondent has already been acquitted.

For this member of the Garda to be tried again before a disciplinary tribunal on “charges” identical to those in respect of which he has been acquitted by a jury, having regard to the narrow purview within which the inquiry must be held, would involve a form of unfair and oppressive procedure which calls for the intervention of the Court.”

 

23.      In this case it is submitted by counsel that all of the allegations in this case involve either the sexual assault that was tried by the Circuit Criminal Court or are allegations which arise out of the allegations of sexual assault.

24.      Further reference is made to the decision of the High Court in the case of McCarthy v. The Commissioner of An Garda Siochána [1993] 1 I.R. 489 where at p. 498 of the report Flood J. stated inter alia as follows:

“Fundamental to our criminal procedure, and indeed to the liberty of the individual, is the presumption of innocence. That finding by a jury of the verdict of not guilty in respect of criminal charges is more than a verdict of not guilty. It is a certificate of the person’s uninterrupted innocence”.

 

25.      Further on the same page Flood J. stated inter alia as follows

“The verdict of that jury was unappealable on fact. No court and no power in the land could challenge it. It was the applicant’s shield against any allegation of dishonesty on his part in relation to matters which had been the subject matter of consideration and adjudication by his twelve peers, the jury men of that trial. That trial on its face, was perfectly fair, all embracing, valid and conclusive. It seems to me that to rip the certificate of innocence from the hands of the applicant and metaphorically to shred it and declare it a total nullity and to claim that it never in fact existed, all by reason of a clerical error made in 1977 as to the age of a District Justice would be wholly inequitable. To permit the State or any arm of the State to purport in any proceedings to retry the applicant on the same facts in relation to the same events will in my opinion be an oppressive and unfair procedure”.

 

26.      Counsel refers to the charges which were the subject matter of the trial before the Circuit Court. He says that the jury was given evidence of remarks alleged to have been made by the accused to the complainant. With regard to the improper examination alleged he says that this must amount to an assault of which the applicant has been acquitted.

27.      With regard to the further disciplinary charges he says that the root of these is the alleged sexual assault.

28.      Counsel further refers this court to the case of Saeed v. Inner London Education Authority [1985] ICR 637 with regard to the standard of proof and accepts that a civil standard of proof applies in the instant case.

 

Submissions on behalf of the respondent

29.      Mr. Eoin McCullough, S.C. submitted in the first instance in regard to the case of McGrath relied upon by the applicant that at best it applied to the charges 1 and 2 pertaining to the alleged indecent assault. It was submitted further that even in relation to the allegations in the McGrath case it did not apply any general principal that an acquittal of itself debars a further disciplinary inquiry into precisely the same circumstances. It is further submitted that a detailed examination of the McGrath case and the subject case is such that even in regard to the disciplinary charges 1 and 2 that a continuation of the inquiry would not be oppressive or unfair. In this regard it is submitted that the McGrath case can be distinguished in every important respect from the facts of the subject case. Fourthly, it was submitted that as a matter of discretion the failure on the part of the applicant to make a case to the Fitness to Practice Committee meant that this court should in exercise of its discretion refuse the applicant the relief which he seeks.

30.      Counsel refers this court to the terms of the Medical Practitioners Act and in particular to section 29 dealing with Temporary Registration, section 45 dealing with Fitness to Practice, section 46 dealing with Erasure or Suspension of Registration from the Register for professional misconduct, unfitness to practice etc., section 47 dealing with the attachment of conditions to the retention on the Register of a Medical Practitioner and section 48 dealing with the powers of the Council to advise, admonish or censure a person in relation to professional misconduct.

31.      Dealing further with the McGrath case and the judgment of Hederman J., counsel contrasted the facts of the instant case from the McGrath case where it was stated that there was a single point in that case. In the instant case it is submitted that the same factual material could be the subject matter of an inquiry as long as the same allegation is not made twice. It is submitted that the facts of the McGrath case were important to the decision that was given in that case. In that case the procedure proposed had not been used in the past and it was prohibited by regulations then in force. As indicated at p. 72 of the report Hederman J., stated that the hearing of the alleged breaches of discipline before the disciplinary inquiry would seek to repeat the same ground as in the criminal trial. Further, in that case Hederman J. indicated at p. 73 of the judgment that he came to the conclusion that there was a single point in the case the jury had to decide, Did the accused act dishonestly? Further in the McGrath case there was a similar purpose in the criminal proceedings to the disciplinary proceedings; both were punitive in nature. It is submitted that it is clear from all of the judgments in the McGrath case that the decision related to the particular member and not to a general principle applying to all disciplinary inquiries. Counsel relies upon the statement by the Chief Justice in that case that it appeared to him that there could not be any general principle “that an acquittal on a criminal charge in respect of an offence, irrespective of the reason for such acquittal, or the basis on which it was achieved, could lead inevitably to an estoppel preventing a disciplinary investigation arising out of the same set of facts”. It is further submitted that there is no rule of law precluding the use of evidence in a disciplinary inquiry which may have been used in the prior criminal trial. It is submitted that the general principle applying to the admissibility of the evidence is namely, that it must be relevant and not of greater prejudicial effect than of probative value.

32.      Counsel has further referred this court to the judgment of McCarthy J. in the McGrath case where at p. 75 of the report it stated inter alia as follows:

“Lest it be considered that acquittal on a criminal charge necessarily precludes a disciplinary investigation into the facts arising out of which a criminal charge was brought I reject such a proposition. The argument in support of such view is one of estoppel. The vital features of each estoppel are that the fact and the parties in dispute are essentially the same.”

33.      Counsel submits that the essential issue is whether there is a repetition of the same charge in the disciplinary proceedings to that in the criminal proceedings. He placed emphasis on the fact that in the McGrath case the allegations were precisely the same as those faced in the criminal proceedings. In the instant case counsel refers to the fact that reliance has been placed upon the fact that the evidential material relied upon includes portion of the book of evidence in the criminal trial. Counsel points out that one does not know what was the precise evidence which was tendered in the criminal trial in support of criminal charges. Counsel points out that this court does not have the benefit of any note of the argument put forward at the criminal trial and no idea of the issues that were before the Criminal Court. Counsel submits that there is no reason why the same material should not be used to support a disciplinary charge as might have been used in the context of a criminal charge.

34.      With regard to the particular disciplinary charges proffered against the applicant in the instant case, it is submitted that the assault charge does not necessarily relate to an allegation of sexual assault. It is submitted that the evidence may support the charge of an improper or inappropriate examination. The same material may be used as that used in support of the criminal charge. It is submitted that even if an improper examination represents an assault it does not preclude an examination of the form of examination. It is submitted that the applicant is not at jeopardy in relation to any allegation of which he has been acquitted save that of sexual assault.

35.      Counsel has further referred this court to the decision of the Supreme Court in the case of Mooney v. An Post [1998] 4 I.R. 288. At p. 295 of the report Barrington J. addressed the acquittal of the Plaintiff on criminal charges in the context of the subsequent civil complaints made against him. He stated as follows:

“Counsel for the plaintiff submitted that his contention that the plaintiff’s acquittal on the criminal charges was a sufficient answer to the civil complaints was supported by the decision of this court in McGrath v. Commissioner of An Garda Siochána [1991] 1 I.R. 69.”

 

36.      At the end of p.296 of the report Barrington J. having reviewed the facts of the McGrath case stated as follows in reference to the decision of the trial judge in the High Court in the case of Mooney v. An Post (Unreported, High Court, 11th February, 1994) :-

“The learned trial judge therefore was right in concluding that McGrath v. Commissioner of An Garda Siochána [1991] 1 I.R. 69 was not a precedent to which the Plaintiff in the present case could usefully appeal. Moreover and even assuming the employer in the present case and the prosecutor in the criminal charge were the same person, it would be absurd if a party who had failed to establish a proposition beyond all reasonable doubt should, by that fact alone, be debarred from attempting to establish the same proposition on the balance of probabilities.”

 

37.      Counsel for the respondent has referred this court further to the decision of the Court of Appeal in New Zealand in the case of In Re A Medical Practitioner [1959] N.Z.L.R. 784. The headnote in that case indicates that a registered medical practitioner was acquitted in a trial by jury in the Supreme Court on a charge that he did indecently assault a named female. Subsequently a complaint was made to a Crown solicitor pursuant to the New Zealand Medical Practitioners Act that the practitioner had been guilt of infamous conduct in a professional respect in that on the day in question while treating the same person for a sore back, he indecently assaulted her. The Crown solicitor wrote to the Convenor of Investigation Committees requesting the appointment of an investigating committee to decide whether the complaint should be brought before the Medical Council with a view to disciplinary action. The practitioner brought an action against the members of the investigation committee so appointed under the Medical Practitioners Act, 1950, the Convenor of Investigation Committees and the complaintant, and claimed, in the alternative, writs of prohibition or an injunction or a declaration. The Supreme Court held that the practitioner was entitled to a declaration that the issue whether the practitioner did indecently assault the named girl on the date in question was res judicata in proceedings before the Medical Council by reason of the verdict of not guilty and the acquittal of the practitioner in the criminal proceedings. The members of the investigation committee and the Convenor of Investigation Committees appealed against the judgment. The Court of Appeal by consent made an order joining the members of the Medical Council and the solicitor as parties. It was held by the Court of Appeal

1. That for the reasons given in the judgments the plea of autrefois acquit was not available in proceedings before the Medical Council.

2. That the principal of res judicata did not apply to the inquiry before the investigation committee or to the proceedings before the Medical Council, because

(1) There was no identity of parties; for, although the Solicitor General in exercising the function conferred upon him by Section 43 (c) of the Medical Practitioners Act, 1950 is acting in his official capacity as a servant of the Crown, there can be no control by the Crown over his actions; and neither the object of Section 43 (c) (6) nor the nature of the duty thereby imposed on the Solicitor General is sufficient to import the Crown into the proceedings and further, in carrying out that duty, he is not serving the Crown purpose and thereby representing the Crown so as to make the proceedings before the Medical Council Crown proceedings; and

(2) There was no identity of issues.

38.      In that case the President of the Court Gresson P. stated inter alia at p.799 of the report that there may be infamous conduct which is not a crime and there may be a crime e.g., a particular type of manslaughter, which would not amount to infamous conduct. The same act may be one or the other or be both. He continued

“But, in my opinion, whatever the charge, the proceedings are not criminal or even quasi-criminal. The Council is exercising, after due inquiry, certain powers conferred by statute; and those powers do not extend to removing the practitioner’s name from the Register. That course can be taken only by the Supreme Court, to which the Council may, with the consent of the Attorney General, apply. The powers of the Council are limited to censure, suspension from practice for a period not exceeding twelve months, or to the imposition of a monetary penalty not exceeding £100. The Medical Council is not a Court of law, but a domestic forum charged in certain cases with a duty of making “due inquiry” into the conduct of a medical practitioner with a view to deciding - of which it alone is the judge - whether he has been guilty of infamous conduct in a professional respect.”

At p.800 of the report Gresson P. stated

“It is well settled that the rule against double jeopardy requires for its application and earlier proceeding in which the individual was exposed to the risk of a valid conviction for the same offence as that alleged against him in the latter proceedings. Viewed superficially, it might seem that the practitioner is called upon to meet the same offence upon the same facts upon the same date against the same person as was the case upon the indictment upon which he was acquitted. But, upon closer examination, it appears that the issues are not the same. The general verdict of not guilty decides nothing more than that there was a failure upon the part of the prosecution to establish all the necessary ingredients. It negatives every offence of which the accused could properly be found guilty on that particular indictment: R. v. Bird (1851) 2 Den. 94, 203, 209; 160 E.R. 431, 473, 475; R. v. Reid (1851) 5 Cox. CC 104

It may be founded upon any insufficiency in the proof: R v. Ollis [1900] 2 QB 758, 769. In R v. Salvi (1857) 10 COX C.C. 481, Sir Frederick Pollock C.J. said: “Acquittal of the whole offence is not acquittal of every part of it; it is only an acquittal of the whole.” (ibid. 483n). Assuming that the accusation to be inquired into by the Medical Council was one of infamous conduct by reason of an indecent assault of the nature specified in the details given, it would be competent for the Medical Council to hold that there had been infamous conduct even though some element necessary in law to constitute an indecent assault were lacking e.g., consent would negative indecent assault but not necessarily infamous conduct. An absence of intent or mens rea would negative indecent assault in law, but maladroitness towards a patient of such a nature as to be susceptible of being regarded as an indecent assault might, in the view of the Medical Council amount to infamous conduct.

It seems to be established that in order that a previous conviction or acquittal can be a bar to subsequent proceedings, the charge must be substantially the same, and further that whether such a plea is a sufficient bar in a particular case depends on whether the evidence necessary to support the second charge would have been sufficient to warrant a legal conviction on the first. Applying that test here, in the criminal prosecution there had to be proved all the ingredients constituting the crime of indecent assault; and this was not proved. On a charge of infamous conduct, with indecent assault alleged as the basis for the charge, less need be proved and, in my opinion, therefore even if there should be hereafter proceedings before the Medical Council upon the terms of the present complaint and such proceedings could properly be regarded as criminal or quasi - criminal, I do not think the plea of autrefois acquit could be successfully raised. What is in contemplation is not a second prosecution for the same offence upon the same facts. It is a proceeding on the part of the domestic tribunal constituted by statute in respect of the medical profession and disciplinary action may follow.”

Later at p. 801 of the report the president of the court continued as follows:-

“Professional misconduct or infamous conduct is not of itself an offence. In order to permit the application of the doctrine of autrefois acquit or autrefois convict there must be proceedings for an alleged offence against the law and subsequent proceedings based on the same facts alleging an offence against the law. In such case, the decision in the earlier proceedings may or may not enable a plea of autrefois acquit or autrefois convict to be raised effectively in the second proceedings. R. v. Barron [1914] 2 KB 570 is authority for the proposition that it is not a general principle of law that a man cannot be placed twice in jeopardy upon the same facts if the offences are different. In my opinion, no principle of law precludes a man who has been acquitted or convicted upon a set of facts alleged to constitute an offence being subsequently subjected upon the same facts to disciplinary action by a domestic tribunal authorised by statute to judge whether the facts constitute infamous or unprofessional conduct. There are not present circumstances necessary for the operation of the doctrine where the second set of proceedings is before a domestic tribunal and the charge is not of an offence against the law. Though in proceedings before the domestic tribunal an earlier conviction by a court of competent jurisdiction does not enable a plea of acquittal or conviction successfully to be raised, the person proceeded against can contend that he was wrongfully convicted.”

 

39.      At page 802 the President stated inter alia as follows:-

“Quite independently of the question whether proceedings before the Medical Council can be regarded as in the nature of criminal proceedings, I do not think the maxim, Nemo debet bis vexari pro uno et eadem causa, or its companion maxim, Nemo debet bis puniri pro uno delicto, applies in regard to proceedings before domestic tribunals constituted for the purpose of disciplining or regulating the conduct of the members of a particular body, profession, or calling. These maxims have never operated to bar a solicitor being proceeded against twice, or being punished twice, in the sense that to be struck off the roll is a punishment. Though the imposition of a monetary penalty or a suspension, or a striking off, viewed realistically, is a punishment, nevertheless the primary purpose of such domestic tribunals and the powers given to them is to ensure that no person unfitted because of his conduct should be allowed to continue to practice the particular profession or to follow the particular calling.”

 

40.      At p. 806 of the report the learned President addressed the principle of res judicata as opposed to the principle of autrefois acquit. He stated that the plea has much in common with the plea of autrefois acquit, but there are differences. He stated:-

“The principle of res judicata is applicable both in criminal law and in civil law; indeed the doctrine of autrefois acquit or convict in criminal law is but an expression of res judicata - the application to a criminal matter of the doctrine of estoppel per rem judicatam. For its application in civil law, it is necessary that the same issue should have been decided between the same parties; but the plea of autrefois acquit can operate where there are different prosecutors in the two proceedings. The general rule necessary for the application of res judicata - namely, that the res has been previously adjudicated upon between the same parties suing in the same right (Townsend v. Bishop [1939] 1 All E.R. 805) - is not satisfied in this case. There is neither identity of parties nor of issues. Counsel for the respondent contended that there was identity of parties inasmuch as proceedings before the Medical Council were, he submitted, proceedings by the Crown - that the Crown was the party “proceeding” as in the former criminal trial. This contention was upheld in the Supreme Court; but, with respect, I do not think the proceedings before the Medical Council (if and when they are taken) are proceedings to which the Crown is a party.”

 

41.      In the instant case counsel before me submits that there is no identity of parties in the case of the criminal prosecution brought at the suit of the Director of Public Prosecutions and the proceedings brought at the suit of the Medical Council. It is further submitted in the instant case that the proceedings being taken are taken to ensure that no person unfitted because of his conduct should be allowed to continue in practice in the particular calling which is in medical practice.

42.      Counsel has further referred this court to a decision of the Supreme Court of New South Wales in the case of Health Care Complaints Commission v. Litchfield (Unreported, Supreme Court of New South Wales Court of Appeal, 8th August, 1997). The headnote to the case indicates that the respondent doctor was the subject of complaints before the Medical Tribunal that he had engaged in inappropriate sexual conduct towards three female patients. He was suspended from practice for 9 months in order to submit to a psychiatric assessment to be referred to the Medical Board. But twelve months after his suspension the doctor was to practice in a position approved by the Board. On appeal the Commission sought an order that the doctor’s name be removed from the Register. The doctor had been acquitted on criminal charges arising from the same facts as the third complaint and he cross-appealed contending that the disciplinary proceedings in respect of that complaint should have been dismissed because they involved double jeopardy. The headnote to the case shows that it was held by the Court in dismissing the cross-appeal and allowing the appeal.

1) The plea of autrefois acquit was not available to the doctor in the disciplinary proceedings. Although both the Director of Public Prosecutions and the Commission are servants or agents of the Crown there was no identity of parties to establish a res judicata estoppel.

2) Because of the different onus in civil and criminal proceedings an acquittal does not prevent disciplinary proceedings arising out of the same facts.

3) The Act contemplated that disciplinary proceedings could be brought before or after criminal proceedings and regardless of their outcome.

4) The purpose of proceedings before the Tribunal was purely protective and no element of punishment was involved. The Tribunal erred in treating the stress on the doctor from the criminal trial and the disciplinary proceedings as a relevant consideration

43.      The headnote proceeds to deal with a number of aspects of the particular case and concludes by stating at point (7) “The paramount duty of the Tribunal and the Court in cases such as this was to protect the public, and particularly female patients, from the abuse of doctors of the power they possess over patients in the course of their practice.” The judgment of the court in this particular case indicates

“Disciplinary proceedings consequent upon a conviction in criminal proceedings are not barred by autrefois convict or any wider principle of double jeopardy. See Re Weare [1893] 2 QB 439 and Law Society v. Bannister (1993) 4 L.P.D.R. 24 at 27 per Sheller JA. The converse is true and adverse disciplinary action does not bar later criminal proceedings arising out of the same facts. See Lewis v. Mogan [1943] K.B. 376; R. v. Hogan [1960] 2 Q.B. 513; and Wigglesworth v. The Queen (1987) 45 D.L.R. (4th) 235 at 256, a decision of the Supreme Court of Canada.”

 

44.      In the course of its judgment the court indicated that the factual questions before the jury were not necessarily the same as those before the tribunal. It said that the issue in the criminal proceedings may have included the existence of an honest belief by the doctor that he had the consent of the patient, whether he was reckless in believing that she consented, and whether she did in fact consent, perhaps because she thought that the doctor had medical reasons for doing what he did.

45.      In the course of its judgment the court addressed in particular the rule against double jeopardy based on an earlier acquittal in circumstances where a plea of autrefois acquit was not available. In this regard the court had particular regard to the decision in the case of The Queen v. Storey (1978) 140 CLR 364. The court referred to the judgment of the Chief Justice Barwick in that case at pages 372-3, in adumbration of the relevant principles, and quoted as follows:-

“...the citizen must not be twice put in jeopardy, that is to say, as relevant to the present discussion, must not be placed at the risk of being thought guilty of an offence of which he has been acquitted, or of in any sense being treated as guilty. It is the use of the evidence given on the prior occasion to canvas the acquittal which, if allowed, would offend the rule against double jeopardy, giving that rule a generous application. The principle that the accused in the subsequent trial must be given the full benefit of the acquittal thus might be regarded as akin to but not a mere extrapolation of the principle of autrefois acquit, both being grounded upon the protection of the law against double jeopardy. But, to my mind, they are distinct principles.” (emphasis supplied)

 

Mason J. said at 396:-

“The principle of res judicata as applied in criminal proceedings will preclude the Crown from challenging the effect of a previous acquittal, not merely in proceedings for the same or a substantially similar offence, but also for proceedings for a different offence when evidence of the transaction the subject of the acquittal is sought to be relied upon. In its application in this fashion res judicata gives expression to the notion that once a person is acquitted of an offence, the acquittal must be recognised fully and without qualification for all purposes in criminal proceedings.” (emphasis supplied)

 

The court in the Litchfield case continued as follows (at p. 5 of the report):-

“It is clear that the principles established in The Queen v. Storey only apply in criminal proceedings between the Crown and an accused, and have no direct application where the double jeopardy relied on arises from disciplinary proceedings heard after an acquittal. Mr. Porter, however, referred to Friedland, “Double Jeopardy”, 1969 at pp 319-320 which supported his submission (although the author noted “the law appears to be otherwise”), and to Re Mulligan Ex Parte Isidoro [1979] W.A.R. 198.”

 

46.      In Re Mulligan the Director of Fisheries refused to renew a fishing boat licence because the licensee had refused to allow a search of his vessel to the satisfaction of an inspector. The former licensee appealed to a Court of Petty Sessions, but while this appeal was pending, the Director prosecuted him for refusing to allow a search of his vessel but this charge was dismissed. The appeal against non-renewal of the licence then came on for hearing. The Director relied on the evidence that had been led in the prosecution and the appeal was dismissed. The full court quashed this decision and granted a mandamus requiring the appeal to be heard and determined according to law.

47.      Burt CJ referred to The Queen v. Storey and held that the former licensee was “entitled to the full benefit of and to a full and unqualified recognition of his acquittal”. Most of the evidence led on behalf of the Director was therefore inadmissible because it’s only relevance was to show that the former licensee was guilty of the offence of which he had been acquitted (201-2).

48.      This decision is distinguishable. Summary proceedings for a criminal offence are between subject and subject. See Munday v. Gill (1930) 44 CLR 38 at 86 per Dixon J.; and John L Pty Ltd v. Attorney General (1987) 163 CLR 508. The parties to the appeal were therefore the same parties as those in the summary proceedings. The requirement for res judicata estoppels, that there be identity of parties, (no question of privies arose) was therefore established.”

 

49.      The Supreme Court of New South Wales points out that Chief Justice Burt held that there was no identity of parties in the Storey case. While the Court in the Litchfield case pointed out that the criminal proceedings were conducted by the Director of Public Prosecutions on behalf of the Crown and the disciplinary proceedings were conducted by the Commission, which is a statutory body representing the Crown and, therefore, both the Director and the Commission were both servants or agents of the Crown, it concluded that it did not follow that there was an identity of parties. In doing so it relied in part upon the Crown Proceedings Act of 1988.

50.      The Court continued (at page 6):-

“Even if, in this case, the parties in both proceedings are the same there is still no res judicata estoppel.”

51.      In this regard the Supreme Court relied upon the civil proceedings involving what it referred to as a civil onus. In fact it was addressing in this regard the different standard of proof that applies in civil proceedings as opposed to criminal proceedings. The judgment of the Court continues:-

“Even if the factual questions were identical, the differences in the onus of proof prevents the issues being the same. Whether particular conduct has been established beyond reasonable doubt is not the same question as whether that conduct has been established on the balance of probabilities. Thus an acquittal does not bar civil proceedings against an accused arising out of the same facts.”

 

52.      The court in the Litchfield case concluded that the issues in the two proceedings relating to the patient LW were not the same. On the same basis the court concluded that the issues in Re Mulligan were not the same either, if only because of the differences in the standard of proof. Accordingly, the Supreme Court declined to follow the observations of Burt C. J. The Court indicated in the case of Re Mulligan, Ex Parte Isidoro [1979] WAR 198

“The proposition that an acquittal does not inhibit disciplinary proceedings arising out of the same facts is well established in other common law jurisdictions.”

 

53.      The court in this regard referred to a number of authorities including Re: A Medical Practitioner (1959) NJLR 784 (CA); and Saeed v. Inner London Education Authority [1985] ICR 637. It continued

“It is also sound in principle because both the onus of proof and the purpose and focus of the proceedings are different.”

 

54.      Counsel for the respondent has also referred this court to the decision in Saeed v Inner London Education Authority (Supra). The plaintiff was a school caretaker employed by the Local Education Authority. He was acquitted in a Magistrate’s Court on an information which alleged that he had assaulted a child at the school. As a result of his acquittal the plaintiff was entitled, on application to the court under Section 44 of the Offences Against the Person Act, 1861, to a certificate of acquittal which, by a virtue of Section 45 thereof, released him from “all further or other proceedings civil or criminal, for the same cause.” His employers subsequently brought a charge of misconduct against him under the staff disciplinary code to which he was subject by reason of his employment. The particulars of the misconduct alleged were identical to those which had formed the basis of the previous criminal proceedings. A disciplinary inquiry into the charge was commenced but was adjourned on the plaintiff’s application. On the plaintiff’s claim, inter alia, for a declaration that the disciplinary proceedings were unlawful and void in that they contravened the rule against double jeopardy and would offend against a certificate under Section 44 of the Offences Against the Person Act, 1861, it was held refusing the declaration:-

1. That the rule against double jeopardy was designed to avoid the peril of a person being convicted twice for the same matter in a court of competent jurisdiction and had no application as between civil and criminal proceedings; that, accordingly, since a disciplinary tribunal applied civil and not the criminal burden of proof and was not a court of competent jurisdiction, the rule did not apply so as to invalidate disciplinary proceedings.

2. That disciplinary proceedings were neither civil nor criminal proceedings for the purpose of Section 45 of the Act of 1861, and accordingly, a Certificate of Acquittal granted to the Plaintiff under Section 44 would not release him from the disciplinary inquiry commenced by his employers.

55.      Counsel has referred me in particular to a portion of the judgment of Popplewell J. at p. 645 of the report under the heading ‘Oppression and unfairness’. Popplewell J. said that for the purposes of this case he assumed that the defendants had no more evidence than was available at the criminal court. He also assumed that the tribunal was going to investigate the same facts which were canvassed before the magistrate. He also for the purposes of the Act assumed that he had a discretion to interfere in order to protect the rights of an individual which have been infringed. It was urged by counsel before Popplewell J. that he should apply what was described as a “the man in the street test”, namely that although the disciplinary hearings are not strictly a trial, they have all the hallmarks of a trial; that punishment can be imposed and that it is not simply an investigation; and that therefore the ordinary man would be outraged at the notion of exposure to a second risk or penalty arising from the same incident. Popplewell J. stated that he had a lesser sense of outrage than that submitted by counsel. He concluded his judgment as follows:-

“The Defendants have a responsibility not only to their members of staff but also to parents and more particularly to those who are in their charge. Their contractual agreements with their staff entitles them to carry out an investigation and to decide whether the employee is to be found blameworthy. That obligation, indeed duty, is imposed on them as a result of contractual arrangements. Its source is the necessity of properly exercising their responsibility to the general public who, in this case, include pupils. Of course, the fact of an acquittal is a matter for them to take it very much into account. If it is thought to be oppressive to conduct an enquiry after an acquittal, what is the position when no proceedings are brought at all? If the complaint is reported to the police who investigate the matter and decide that there is no evidence upon which to proceed, is a plaintiff in that case to be treated differently from the plaintiff in this case? What is the position of two plaintiffs where a disciplinary enquiry is held in one case before an acquittal and in the other after?

There are a number of decisions in industrial tribunals and in the Employment Appeals Tribunals holding that a dismissal after an acquittal does not necessarily constitute unfair dismissal under section 57 of the Employment Protection (Consolidation) Act, 1978: see for instance Harris (Ipswich) Limited v. Harrison [1978] 1 ICR 1256. Indeed there is an argument, as in Lavelle’s case , that it is unfair to hold the disciplinary proceedings first because an applicant might be prejudiced in subsequent criminal proceedings by having to disclose his defence. If the result of the disciplinary proceedings is not to be held to be unfair, how can it be said that the institution of proceedings is?

The tribunal sits for a different purpose. It ha different rules and different standards of proof. It has different powers. Its responsibility is different.

In the result, assuming that I have a discretion to prevent the tribunal sitting to hear or continue to hear the complaint against this plaintiff, I am quite unconvinced that it is a discretion of which I should exercise in the present case. I do not accept that it is oppressive or unfair. Accordingly the plaintiff’s claim for declaration and/or an injunction fails.”

 

56.      Counsel for the respondent has submitted that there are a number of essential differences between the instant case and the McGrath case relied upon by the applicant as follows:

1. In the McGrath case there was a single point which was the subject of the criminal trial. It is submitted that it is impossible to say in the instant case that there was a single point or that the same issues arise here.

2. It is submitted that in a disciplinary matter in determining whether there has been a sexual assault it does not necessarily involve the same issue as those before the criminal court. It is submitted that the fact that the wording is the same does not mean in fact that the same allegation is being made and investigated.

3. With regard to the public policy aspect of the Medical Council’s role it is not simply a disciplinary body but it is engaged in an important public duty.

4. In the McGrath case punishment was at risk in both processes. Here it is submitted that it is not the case. The applicant is not at risk of punishment in the proceedings before the Committee. The sanction in question in the proceedings is for the protection of the public. The issue is the fitness of the applicant to practice. Furthermore, this is not a decision of the Council. Any serious sanction involves an application to the High Court.

57.      It is submitted that in the McGrath case the moving party was the same in both the proceedings, in the context where one was the Director of Public Prosecutions and the other was the Garda Commissioner, both being the State. Here it is alleged on behalf of the applicant that there is a commonality of parties. It is submitted by counsel for the respondent that this submission is incorrect; that the Medical Council is not an agent of the State. It is submitted that there is no circumstance under which the Medical Council is precluded from acting to bring the matter before the Fitness to Practice Committee in the instant case. With regard to the onus of proof or the standard of proof it is submitted on the basis of the authority of Grant v. The Commissioner of the Garda Siochána (Unreported, High Court, 12 June 1996) that a lesser standard of proof pertains in the proceedings before the Fitness to Practice Committee than that applying in the criminal prosecution before the Circuit Court.

58.      With regard to the issue canvassed that the application in this case is premature, it is submitted that as a matter of discretion that this Court should refuse to make an order in favour of the applicant. In support of this submission counsel has referred this court to a number of decisions including Philips v. The Medical Council [1991] 2 I.R. 115, and Clune v. Director of Public Prosecutions [1991] I.L.R.M. 17. In this letter case Gannon J., dealing with an application to proceed with a trial, said that the Court must presume that the D.P.P. will conform to the principles of justice (as would the Attorney General) in the exercise of his functions. He indicated that it would require very strong and convincing evidence to displace that presumption. The evidence offered on the application for an injunction in that case did not measure up to the standard required to support an application for an injunction quia timet. Further counsel referred this court to the decision of the High Court in the case of Donegal Fuel and Supply Limited v. Londonderry Harbour Commissioners [1994] 1 I.R. 24 where at page 40 of the report Costelloe J. indicated that an objector to draft bye-laws was required to exhaust his statutory remedies before seeking the aid of the Court in relation to them.

59.      In rejoinder on behalf of the applicant Mr McDonagh referred to the authority of R. v. Bostok 17 Cox (1893) 700 which indicated that sexual assault includes common assault. Counsel referred this Court further to the authority of The Attorney General v. Power [1964] I.R. 458. Counsel submitted further that if this Court limits the charges that may be considered by the Fitness to Practice Committee then one was left with a consideration whether the Committee would have before it evidence which was tended before the Circuit Criminal Court. He submitted that there was an identity of parties in the criminal prosecution and in the instant case the respondent being established by Acts of the Oireachtas and representing the State in essence. Counsel submitted that the applicant does not rely heavily on the res judicata argument but that he relies essentially on the more general principle of fair procedures. In this regard counsel referred this Court to the authority of Mooney v. An Post [1998] 4 I.R. 288 where a private law employment contract was at issue as against the issue of the exercise of the statutory power.

60.      Mr McDonagh submitted that the New Zealand case relied upon by the respondent does not address the rationale arising from the Irish cases and would limit the issue of autrefois acquit or convict and the issue of res judicata.

61.      Counsel submitted that the uncontroverted evidence of the applicant was that the case against him depended on the non-belief of the complainants’ testimony. He submitted that a different approach was adopted by the courts in Ireland to that adopted by the Court of Appeal in New Zealand.

62.      Counsel has referred this Court to a portion of the judgment of Gresson P. in the New Zealand case In Re A Medical Practitioner (supra) to contrast with judgments in this jurisdiction and submits that different approaches exist in this jurisdiction to those adopted by the New Zealand courts. Towards the end of this judgment at page 808 of the report the President of the Court indicated that he would be prepared to hold if necessary that, in proceedings before a domestic tribunal such as the Medical Council the plea of res judicata is just as inapplicable as is that of autrefois acquit or autrefois convict for the reasons set out in his discussion on the question whether these last had any application. He continued:-

“Moreover, independently of that consideration, I should not be disposed to hold that the acquittal of the practitioner precluded a full consideration of the terms of the complaint by the Medical Council. An acquittal ascertains no fact as a conviction does. It establishes no more that that a same ingredient necessary to constitute the offence charged was not proved. An acquittal shows no more than that the accused was not guilty of some essential element; and, in my opinion, there is no res judicata to prevent inquiry into some of the essential facts where those facts are relevant to an accusation of a different character, i.e., infamous conduct.”

 

63.      Counsel contrasts the position as indicated in New Zealand with the words of Flood J. in McCarthy v. The Commissioner of An Garda Siochána at 498 where he referred to the finding by jury of a verdict of not guilty in respect of a criminal charge being more than a verdict of not guilty. It is a certificate of the person’s uninterrupted innocence. A further statement by Flood J. on the same page where he indicated that in the Kilkenny indictment trial it was an accepted assumption that, on the return of the verdict of not guilty, there was vested in the applicant a certificate of that uninterrupted innocence to which he had made reference. He added:-

“The verdict of that jury was unappealable on fact. No court and no power in the land could challenge it. It was the applicant’s shield against any allegation of dishonesty on his part in relation to the matters which had been the subject matter of consideration and adjudication by his twelve peers, the jury men of that trial.”

 

64.      Counsel has referred back to the Litchfield case where at page 6 of the judgment it is indicated that the Court held that there was no res judicata estoppel by reason of the fact that a different onus/standard of proof prevents the issues being the same in the civil proceedings as opposed to those in the criminal proceedings. Counsel refers to a portion of the text from Friedland, Double Jeopardy, (1969) page 319 which reads:-

“After an Acquittal

Can disciplinary action be taken for the same offence after an acquittal in the criminal courts? The answer should depend on the degree of proof required before a disciplinary tribunal. If the degree of proof required is significantly less than that in the criminal courts, then the acquittal should probably have no effect, though it would surely influence the decision whether to commence proceedings. On the other hand, if much the same degree of proof is required in each case, then a further hearing for the same cause should be considered a violation of the rule against double jeopardy. It is somewhat difficult to compare the standard of proof required because the evidentiary rules are not strictly applied before the disciplinary tribunal. However, because the consequence of disbarment or removal from the Medical Register is very serious to the accused, fairness to the accused would require, if not the same degree of proof, then at least one with a high degree of certainty. If this is so, then res judicata should apply and a disciplinary proceeding for an offence for which the accused has already been acquitted should be barred. Most professional disciplinary bodies probably take this view. Nevertheless, the law appears to be otherwise.”

 

65.      With regard to the submissions of counsel on behalf of the respondent that the application in this case is premature, it is submitted by Mr McDonagh that the position as indicated in the case of Philips v. Medical Council [1992] I.L.R.M. 469 differs fundamentally from the facts of the instant case where the applicant has been acquitted of criminal charges which he submits are now being investigated by the respondent.

66.      In conclusion counsel has referred me to the standard of proof which he submits should be applied by the Medical Council and the Fitness to Practice Committee in a case such as that in contemplation against the applicant herein. Counsel referred in particular to page 23 of the judgment of Murphy J. in the case of O’Laoghaire v. Medical Council where he indicated that in Grant v The Garda Siochána Complaints Board (Supra) he had expressed the view, in reference to a number of persuasive authorities cited including Bahndari v. Advocate’s Committee [1956] 3 All ER 742 and Lanford v. General Medical Council [1956] 2 All E.R. 921, that

“each of those cases accepted or assumed that allegations of professional misconduct were required to be proved to a standard higher than that described as the balance of probabilities” but that “neither of these cases resolved the problem satisfactorily.”

 

67.      However, it is to be noted that from the judgments in the O’Laoghaire case the Fitness for Practice Committee applied in fact a criminal standard of proof, whether that was appropriate or otherwise. On this basis it is submitted that the same standard of proof falls to be applied in the instant case and the inquiry before the Fitness for Practice Committee as that already applied in the criminal case before the Circuit Court.

 

 

Conclusions

68.      In the absence of a transcript relating to the trial of the applicant in these proceedings it is not possible for this Court to ascertain the precise issues that were addressed to the jury in the course of the criminal trial of the applicant. The applicant was afforded an opportunity of producing these transcripts to this court but realising the costs of doing so decided that he could not afford to do so. At that stage he sought to put forward an affidavit to this court setting out a summary of what transpired in the Circuit Court. I am satisfied from reading it that it represents at best a summary and that it does not address in any detail the precise issues that were addressed to the jury in the case and the precise nature of the defence contentions made at the criminal trial. In light of this fact this court must address the issues on the basis of the grounding affidavits submitted by the parties on both sides.

69.      In light of the absence of any clear evidence indicating the basis of the verdict of not guilty on each of the counts charged against the applicant I can say no more than was stated by Gresson P. in the case of In Re A Medical Practitioner [1959] N.Z.L.R. 784 where he stated:-

“The general verdict of not guilty decides nothing more than that there was a failure on the part of the prosecution to establish all the necessary ingredients”.

 

70.      As indicated in that case an absence of intent or mens rea would negative indecent assault in law. Further, what is in contemplation in the instant case, is, in the words in the judgment of Gresson P. in that case:

“not a second prosecution for the same offence upon the same facts. It is a proceeding on the part of the domestic tribunal constituted by statute in respect of the medical profession”

and what is sought to be investigated in the instant case amounts to a charge of professional misconduct which is not of itself an offence.

 

71.      I am satisfied on the facts of the instant case that the doctrine of autrefois acquit does not apply as the proceedings contemplated before the Fitness to Practice Committee are not for an alleged offence against the law. I am satisfied that the purpose of the contemplated proceedings in this case is not primarily punitive but is one to ensure that no person unfitted because of his conduct should be allowed to continue to practice the particular profession or calling enjoyed by the applicant.

72.      With regard to the principle of res judicata I am satisfied that there is not the same identity of the parties between the criminal process and the proposed hearing before the Fitness to Practice Committee to give rise to the application of the principle of res judicata even if one was to consider that the issues are the same. However, I am furthermore of the opinion that the issues themselves are not the same. The proceedings to be taken are to ensure that no person unfitted because of his conduct should be allowed to continue in practice in the particular calling which is in medical practice. I am also influenced by the decision in the Litchfield case which shows that in a case such as this the plea of autrefois acquit is not available and that furthermore by reason of the absence of a common identity between the parties in the criminal proceedings and in the proceedings before the Fitness of Practice Committee that there is no identity of parties to establish a res judicata. Further there is a different onus in the proceedings before the Fitness to Practice Committee and criminal proceedings insofar as the law is concerned. It is unclear as to what is the proposed onus or standard of proof proposed in the proceedings before the Fitness to Practice Committee in the instant case. I am further satisfied that the purpose of the proceedings before the Fitness to Practice Committee is protective as no element of punishment is involved.

73.      I am further influenced by the decision in the Saeed case (supra) in holding that the rule against double jeopardy does not apply to the facts of the instant case. I am satisfied that it is competent for the Medical Council to have regard to the same factual matter as was before the Circuit Criminal Court in assessment of the issues before it in the contemplated proceedings.

74.      The essential issue that remains is whether in light of the nature of the complaints to be investigated by the Fitness to Practice Committee it can be said to amount to an unfair or oppressive procedure to investigate in particular the charges of sexual or indecent assault alleged to have been perpetrated by the applicant on the two patients concerned. I am satisfied on the facts of this case that no assault other than those the subject matter of the criminal charges are sought to be inquired into. In other words what is at issue is whether the proposed inquiry into items 1 and 2 referred to should be precluded whatever about the conduct of inquiry into the allegations of profession misconduct contained in items 3-10 previously referred to in this judgment. In this regard what remains is not an issue as to whether the principles of double jeopardy have any application or whether the principle of autrefois acquit has any application to the facts of the instant case. I am satisfied that the issue is whether it would be manifestly unfair to permit the proposed inquiry or any part of it to proceed in light of the acquittal of the applicant on the charges preferred against him and tried by the Circuit Criminal Court. In conclusion, I am of the opinion that there is no reason why the Fitness to Practice Committee should not hear the proposed evidence and consider it in relation to the conduct of the applicant. I am of the opinion nevertheless that it would be essentially unfair were the Medical Council to enter upon a hearing to determine that the applicant was guilty of an assault of which he has been acquitted by the Circuit Criminal Court. This is not to say that the Committee should not hear all of the evidence proposed to be given in assessment of whether the conduct alleged against the applicant is conduct which it considers to have been established and to determine whether in the light of this fact he is a person who may have been guilty of inappropriate behaviour in the context of the complaints set out at paragraphs 3-10 inclusive in relation to each of the complainants who were allegedly examined by him when in hospital.

75.      With regard to the submission that the applicant has been premature in bringing this application and in not allowing the matters raised by him to be canvassed before the Fitness to Practice Committee or the Medical Council itself, I am satisfied that there is some force in this. Nevertheless, having been given leave by this Court to bring the within proceedings, I am satisfied that he is not in a formal sense precluded from seeking the assistance of this Court in the relief which he seeks.

76.      In all of the circumstances, while I am satisfied that the principle of double jeopardy and res judicata do not apply to the facts of this case, I am of the opinion that principles of fairness suggest that the proposed inquiry should be limited to the complaints at items 3-10 inclusive and to paragraphs (a) and (b) of the Notice of Intention to hold an inquiry under Part V of the Act dated the 21st day of February, 2000 and signed by the Registrar and addressed to the applicant.