Doctor may now contest inquiry decision

A CORK doctor can challenge a decision by the Medical Council's Fitness to Practise Committee that an inquiry into allegations of professional misconduct should be in private rather than in public, the Supreme Court ruled yesterday.

Dr James M. Barry of Glanmire, Cork, had appealed last month's decision by the High Court to refuse him leave to seek a judicial review of that decision.

The doctor, present during yesterday's appeal hearing, wants a public inquiry.

The inquiry, held under Part V of the Medical Practitioners Act, began in private on November 11th. The Supreme Court heard yesterday that the substantial hearing had not yet started.

Mr Justice Geoghegan in the High Court refused the doctor's application for a judicial review. He was satisfied that nowhere in the Act was it mandatory for proceedings to be heard in public. The committee, he said, had given a reasoned decision on its refusal of a public hearing.

If there was discretion under the Act on whether the inquiry should be in private or public, it was beyond argument that the discretion was exercised properly, having regard to the general nature of the case and the reasons given, said the judge.

Yesterday the Supreme Court overruled that decision to the extent that the court should grant the application for leave for a judicial review under two points only.

These were that the Fitness to Practise Committee was not entitled to rule that its proceedings be held in private once the doctor had requested that they be held in public; the proceedings were conducted and a decision made in circumstances inconsistent with any objective separation of the function of the prosecutor and adjudicator of the tribunal.

Dr John White SC, for Dr Barry, said there were at least arguable grounds for him to say that if the legislature intended that inquiries by the committee would be held in private then it would have expressed that intention.

Dr White said the committee decision for a private inquiry was unconstitutional.

When asked by Mr Justice Barrington if the decision was to protect the reputation of the person against whom the complaint was made Dr White replied that the reputation of his client was gone already.

While he agreed that parties involved in such an inquiry might need to be protected, any restrictions that needed to be applied should be minimal and strictly justified.