A Balancing Act: Responsibility of Statutory Regulators and Court to Consider Competing Rights
17 February 2021
An important aspect of the regulation of professionals is to ensure that the public have confidence in the process by which such individuals are held to account in a disciplinary context. The maintenance of confidence in the process is underpinned by the practice of holding public hearings for certain stages of the procedures. While this is the case with all regulated professionals, this article will examine the implications of this process for medical professionals.
The principle that justice be administered in public must be balanced against the rights of the registered professional (including his or her reputational rights) and any rights or concerns which third parties may have, for example, witnesses to the disciplinary procedure.
The requirement that aspects of the disciplinary process be heard in public, correlates with the constitutional requirement that justice be administered in public. The counter to this general rule is that a prosecution against a professional which cannot be proved could negatively impact on the professional’s reputation and their constitutional entitlement to earn a livelihood. The most common exception to the rule that elements of the disciplinary procedure should be heard in public is where there is a concern that the registered professional may be prejudiced in a subsequent criminal or civil prosecution.
In a recent decision of the High Court in The Medical Council .v. A Medical Practitioner  IEHC 245, the court considered departing from the general rule of a full public hearing to consider and confirm the decision of the Fitness to Practise Committee of the Medical Council (the “Council”). Various allegations were made against a doctor (who was registered with the Medical Council). Following an Inquiry under Part 8 of the Medical Practitioners Act 2007 (the “2007 Act”), the Council found that certain allegations were proven, determining that these findings amounted to professional misconduct on the part of the doctor and recommended that his registration be cancelled.
As required by Section 76 of the 2007 Act (a “Section 76 application”), the Council applied to the High Court to seek confirmation of its decision. The Council was concerned that should the Section 76 application be heard in public; material prejudice may be caused to the doctor should he subsequently face criminal prosecution for his actions. There was also a concern as regards the privacy of certain witnesses to the disciplinary process, who wished to remain anonymous. The Council therefore applied to the court on an ex parte basis (the doctor or his lawyers were not present at the hearing) to have the Section 76 application heard in camera or on an anonymised basis as an exception to the general rule as to public hearings.
In reviewing the application of the Council, Mr Justice Brian O’Moore considered whether there was an absolute requirement that the Section 76 application be heard in public or whether the court may deviate from a public hearing. The court cited a decision of the High Court in Gilchrist and Rogers .v. Sunday Newspapers Limited  IESC 18 in which the Supreme Court held that the court retained a common law power, to be exercised sparingly and having considered constitutional aspects, to direct that a hearing could take place in camera in certain limited circumstances. While the Gilchrist decision did not specifically relate to Section 76 applications, the court considered the limitations of the provision in Medical Council .v. Anonymous  IEHC 109. In Anonymous, the court accepted the principle set out in Gilchrist that there was a common law power to direct that an application be heard in camera, in the context of a Section 76 Application. Mr Justice Kelly found that the parties’ interests could be protected by prohibiting the publication of anything that might identify the doctor and the patients involved, therefore an in camera application was not appropriate or necessary.
In a Medical Practitioner, Mr Justice O’Moore accepted that despite the wording of Section 76, the court could hold such applications in camera provided the requisite standard was met. The question then arose, whether the application should be heard in public, in camera or on an anonymised basis. The court concluded that, if the hearing took place on an anonymised basis, although the identity of the witnesses would be protected and the doctor’s name or initials would be redacted, it would not be possible to conceal the fact that the professional involved was a doctor, as the use of the 2007 Act was only applicable to registered doctors. The court found that to have the application heard in public would not have been a fair administration of justice when the competing interests of the doctor and witnesses were considered. Therefore, the court held that the Section 76 application should be held in camera. Material prejudice may be caused to the doctor by a public hearing of the application should he subsequently face criminal prosecution, which the court accepted was a distinct possibility.
While this case concerned a doctor, the principles enunciated by the court would have equal effect with other registered professionals. When a court is asked to confirm a decision of an internal board or committee of the respective statutory body, the court must weigh up the interests of justice being administered in public, with the rights of the registrant, professional or any other third parties involved in the disciplinary process. In all of the cited cases, the court was anxious to emphasise that the courts power to deviate from the statutory requirement, for a hearing to be heard in public, should be used very sparingly and only in exceptional cases.