A CORK GP Dr James M. Barry, has lost his High Court challenge ,to a decision by the Medical Council's Fitness to Practise Committee to hold an inquiry into allegations of professional misconduct in private rather than in public.
Dr Barry, of Glanmire, Co Cork, is at the centre of allegations that he videotaped women patients. He claimed he had a constitutional right to have the inquiry in public.
Because of the action a number of cases already before the Fitness to Practise Committee, including an inquiry into allegations against Dr Moira Woods, had been deferred pending the court's decision.
Dr Barry sought to quash last November's decision by the committee to hold an inquiry under the Medical Practitioners Act of 1978, in private.
After the President of the High Court, Mr Justice Costello, dismissed the application, the Medical Council's registrar, Mr Brian Lea, said they would have to study the judgment in full before making any comment.
Mr Justice Costello said Dr Barry's challenge resulted from his Supreme Court appeal against a ,decision of the High Court to refuse him leave to seek a judicial review of the committee's decision.
Last December the Supreme Court overruled the decision of the High Court to the extent that the court could carry out a judicial review on two points only - that the committee was not entitled to rule that the whole of the inquiry be conducted in private once Dr Barry had asked that it be held in public, and that the proceedings were conducted and the decision made in circumstances which were inconsistent with the objective separation of functions of prosecutor and adjudicator of the tribunal.
The inquiry began in private last November. It was stated in the Supreme Court that the substantial hearing hag not started.
Mr Justice Costello said the committee was correct in exercising its discretion under the Act to hold its hearings in private. It was well aware of its constitutional duty to adopt fair procedures and of the provisions of the European Convention on Human Rights.
The committee was of the view that it had power to protect the private lives of the parties to the inquiry and correctly applied the principles contained in the convention. Its proceedings were not unfair for failing to apply internationally accepted norms, he said.
The judge said he accepted evidence that there was a risk that the proceedings against Dr Barry might not take place at all if the hearings were in public. A number of complainants had indicated an unwillingness to be involved even in a private inquiry. One complainant had indicated she wished her privacy to be completely respected.
Mr Justice Costello said the nature of the complaints constituted special circumstances and meant there was a strong probability that a decision to hold the inquiry in public would prejudice the interest of justice.
Before the application to the court there had been widespread publicity about Dr Barry's alleged conduct, said the judge. It was widely known that serious allegations had been made against Dr Barry, but that was not a reason why the inquiry should be public.
He did not consider that Dr Barry required any protection from the risk that the council or the registrar or the solicitor and counsel employed by the registrar would be guilty of misconduct and that a public hearing to obviate it was required. The committee correctly exercised its discretion and he could find no unfairness in the procedures.
Mr Justice Costello rejected the doctor's claim that the registrar was subject to the control of the council and was not a fit person to present evidence of alleged misconduct to the committee.
The judge accepted the evidence that the committee had not any predetermined attitude before the hearings took place and that its members did not give any special weight to the argument presented by the registrar because of his relationship with the council or to the fact that the solicitors retained by the registrar were also advisers to the council.
Dismissing the application, he said he was satisfied that the Medical Practitioners Act was implemented fairly and that, objectively, no reasonable person could consider that the acts could prejudice the impartiality of the committee.