Title:	Ahmed -v- Medical Council
Neutral Citation:	[2003] IESC 70
Supreme Court Record Number:	208/03
High Court Record Number:	2002 91 JR
Date of Delivery:	12/19/2003
Court:	Supreme Court
Composition of Court:	Keane C.J., Denham J., Murray J., McGuinness J., Hardiman J.
Judgment by:	Hardiman J.
Status:	Approved
Result:	Dismiss
Judgments by Link to Judgment Concurring Keane C.J. Link Denham J., Murray J, McGuinness J. Hardiman J. Link Denham J., Murray J, Mc Guinness J.

Between:

1. This is the applicant’s appeal from the judgment of the High Court (Ó Caoimh J.) of the 28th April, 2003 and consequent order perfected on the 13th May, 2003 whereby the applicant’s claims to relief by way of judicial review were dismissed.

Factual background.

2. The applicant is a medical graduate of Allama Iqbal Medical College, Lahore, Pakistan. He graduated in 1993, and subsequently worked in various hospital posts and in general practice. His personal history is set out in some detail in the judgment of Ó Caoimh J. in previous judicial review proceedings instituted by the applicant against the respondent, delivered the 11th October, 2001.

3. On the 6th July, 1997 the applicant commenced working in the Mater Hospital, Dublin as a supernumerary unpaid Senior House Officer. He obtained temporary registration as a medical practitioner. It appears that he took up this position with a view to obtaining a place on a training course. On the 28th July, 1997 the applicant performed certain actions in relation to two female patients who were awaiting relatively minor surgery. The two patients spoke to various persons including relatives, staff at the hospital and ultimately to the Gardaí alleging that these actions amounted to sexual assault. He was charged with two counts of sexual assault on or about the 7th August, 1997. Bail was set on these charges but the applicant was unable to meet the terms of the bail order and was accordingly on remand awaiting trial from August 1997 until January, 1999. In the latter month he was acquitted of both counts.

The Medical Council’s involvement.

4. Subsequent to his acquittal, the applicant again sought temporary registration from the respondent Council. The Council is a body incorporated by statute, the Medical Practitioners Act, 1978. Allegations of professional misconduct arising out of the applicant’s alleged actions in the Mater Hospital on the 28th July, 1997 were made to the Medical Council and considered by its Fitness to Practice Committee. On the 26th October, 1999 the Committee decided that there was a prima facie case for the holding of an inquiry into alleged misconduct on the part of the applicant. The applicant was notified of this on 28th October, 1999. Pursuant to Part V of the Medical Practitioners Act, 1978, it then became the duty of the Council’s registrar to present the evidence of alleged misconduct to the Committee. Notice of Inquiry was issued and served on the 21st February, 2000 and the hearing fixed for the 13th, later changed to the 14th, of March, 2000.

5. On the 13th March, 2000 the applicant obtained leave to apply for judicial review in proceedings entitled “The High Court 2000 No. 120 JR Between Aftab Ahmed, Applicant and the Medical Council Respondent”. He also obtained an ex parte order restraining the conduct of the Inquiry. These proceedings will henceforth be referred to as the “first Judicial Review proceedings”. The principal relief sought in these proceedings is similar to that originally sought in a second set of proceedings (“The present proceedings”). The grounds on which the relief sought are, however, different. In the first proceedings he claimed:-

“(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 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 Mrs. J.H. on or about the 28th July, 1997 and/or allegations of assault and/or indecent assault and/or sexual assault by the applicant on MOS 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.

(1) An Order staying the inquiry being held by the Respondent pursuant to Part V of the Medical Practitioners Act, 1978, notice of which was served upon the Applicant by Notice dated the 7th day of December, 2001 into allegations of professional misconduct on the part of the Applicant insofar as the Fitness to Practice Committee may not proceed to report stage.

(2) A Declaration that the Respondent’s failure to provide legal aid to the Applicant to enable the Applicant be legally represented at the proposed Section 45 Inquiry to be conducted by the Respondent’s Fitness to Practice Committee at which the Applicant will be charged with professional misconduct constitutes a failure on the part of the Respondent to provide fair procedures to vindicate the Applicant’s right to earn his livelihood.

(3) A Declaration that Part V of the Medical Practitioners Act, 1978 and in particular the statutory power granted to the Respondent to conduct Inquiries into the Fitness to Practice of any Medical Practitioner requires the Respondent in the conduct of such Inquiry to conduct such Inquiry in a manner which is fair and in accordance with the principles of natural and constitutional justice and that such conduct would require that any person brought before such Inquiry would be legally represented and that if such person is unable to afford such representation that an onus falls upon the Respondent to provide such person with legal representation or with the means to procure such legal representation.

(4) A Declaration that the failure of the Respondent to provide the Applicant with the means by which he may be legally represented at the Disciplinary Inquiry being conducted by the Applicant’s Fitness to Practice Committee constitutes a breach of the Applicant’s constitutional rights and, in particular, the Applicant’s constitutional rights to his good name and to earn a livelihood.

(5) A Declaration of Section 56 of the Medical Practitioners Act, 1978, permits the Respondent to provide or cause to be provided legal representation or sufficient means so to enable the Applicant to procure legal representation at the hearing of the Inquiry pursuant to Part V of the Medical Practitioners Act, 1978, notice of which was served on the Applicant by Notice dated the 7th day of December, 2001 into allegations of professional misconduct on the part of the Applicant.

(6) In the alternative a Declaration that insofar as the provisions of Part V of the Medical Practitioners Act, 1978, do not permit the Respondent to provide legal representation to any means so to procure legal representation to the Applicant the same are invalid having regard to the provisions of the Constitution.

Chronology of proceedings.

8. We have already seen that the holding of the inquiry listed for the 14th March, 2000 was restrained by the order granted the previous day. The proceedings in which this order was made were determined in the judgment of the 11th October, 2001. No appeal was taken from this judgment and the order which followed it. The order refused the relief sought by the Applicant in the first judicial review proceedings except in one respect: Ó Caoimh J. restrained the holding of an inquiry into the first two of the ten allegations of professional misconduct, on the basis that these allegations precisely mirrored the criminal charges of which the applicant was acquitted.

9. By letter dated the 7th December, 2001 the holding of the inquiry, limited as indicated above, was fixed for the 20th February, 2002. On the 14th December, 2001 the Chairman of the Fitness to Practice Committee wrote to the applicant’s solicitors explaining the considerable volume of work before the Committee and certain consequential matters about the composition of any particular Fitness to Practice Committee. On the 24th January, 2002 the applicant’s solicitors stated that he was impecunious and asked for details “of any financial or legal aid that would be available to our client. In the event that such systems of assistance do not exist we would call upon you to consider the extraordinary circumstances of our client and to propose a solution so that he would have proper and adequate legal representation at any disciplinary hearing. We wish to make it clear that our instructions from Dr. Ahmed are that he requires legal representation (at) any disciplinary hearing but that he is currently not in a position to afford same.” By letter of the 1st February, 2002 the Council’s solicitor confirmed “That the Council is not in a position to make available financial/legal aid, nor is it in a position to provide legal representation for your client.”

10. On the 19th February, 2002, the applicant sought leave to apply for judicial review and an interim order restraining the respondent from conducting the fresh inquiry. Leave to seek these reliefs by way of judicial review was refused in the High Court (Kelly J.) and the inquiry proceeded on the 20th February, 2002 and on the following two days. The transcript of these three days hearing was exhibited in these proceedings. From reading them it appears that there was no major disputed issue of primary fact, nor any major legal issue. The principle issues seem to relate to whether certain actions performed by the applicant amounted to misconduct in the eyes of qualified members of the medical profession and lay members of the Committee.

11. The applicant applied to the Supreme Court by way of appeal from the order refusing him leave and was granted leave to apply by the Supreme Court on the 22nd February, 2002. He also obtained from the Supreme Court an order restraining the Fitness to Practice Committee of the Council from reaching a determination in the inquiry until after the determination of the present proceedings. Having been granted leave, his motion for the relief claimed in the statement grounding the present proceedings were heard and determined, as mentioned above, by the judgment of the High Court (Ó Caoimh J.) delivered on the 28th April, 2003, from which order this appeal is taken.

The first issue.

12. It is convenient to deal first with a particular contention of the respondent. This is to the effect that the applicant has been guilty of delay which both puts him outside of the time limited by order 84 rule 21 of the Rules of the Superior Court for seeking relief by way of judicial review, and, furthermore, is in itself gross, inordinate and inexcusable. Further or in the alternative, the respondent says, the applicant should be refused relief in the discretion of the Court on the basis that the present proceedings are an abuse of the process of the Court, unreasonable, unjust and contrary to fair procedures. This is on the basis that the applicant could have raised the issue of legal aid or funded legal representation at any time after he was first notified of the decision to proceed to Inquiry, on the 28th October, 1999 or at the latest when the first inquiry was fixed by formal notice, dated the 21st February, 2000. Because of these matters, the respondent claims, it has been seriously delayed in discharging its statutory function of holding an inquiry into allegations of professional misconduct against a medical practitioner and has been put to considerable inconvenience and expense. It is confronted with two sets of judicial review proceedings, where one would have been sufficient. Witnesses, including the patients involved in the incident in July 1997, have been inconvenienced and the proceedings before the Fitness to Practice Committee gravely and needlessly prolonged. Furthermore, say the respondents, the applicant has made no attempt to explain why he did not agitate his claim to legal aid or funded legal representation in the first set of judicial review proceedings.

The law.

13. In advancing this contention, counsel for the respondent relied on the recent decision of this Court in Eamon Carroll and Mary Carroll and Chris Ryan, John Rogers and the Law Society of Ireland (Supreme Court unreported 21st January, 2003). This case featured an application of what might be called the principle in Henderson v. Henderson [1843] 3 Hare 100. In a famous passage, more often cited in recent years than in the decades immediately after its delivery, Sir James Wigram V.C. said:-

“I believe I state the rule of the Court correctly when I say that where a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward the whole case and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have from negligence, inadvertence or even accident omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties exercising reasonable diligence might have brought forward at the time”.

15. Although the principle thus expressed has never been doubted there has in recent years been a good deal of debate as to its precise legal nature and taxonomy and as to the circumstances in which and rigidity with which it should be applied. Many of these issues are debated in an illuminating article by Mr. Justice Handley, a judge of the Court of Appeal of New South Wales in 118 LQR 397 “A closer look at Henderson v. Henderson” (July 2002). The learned author cites various recent and not entirely consistent applications of the principle. In particular, he considers too crude and too mechanistic the application of it in Yat Tung Investment Company Limited v. Dao Heng Bank Limited [1975] AC 518. In that case Lord Kilbrandon and his colleagues dismissed as an abuse of process proceedings which were an attempt to raise matters which “could and therefore should have been litigated in earlier proceedings”. Handley J. prefers the approach of Lord Bingham in Johnson v. Gore Wood [2002] WLR 72. He said:-

“Henderson v. Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not twice be vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interest of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the Court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I do not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the Court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in the earlier proceedings it should have been, so as to render the raising of it in a later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad merit based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focussing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the Court by seeking to raise before it the issue, which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not”.

“But at least as important is the general need, in the interest of justice, to protect the respondents to successive applications in such circumstances from oppression. The rationale of the rule in Henderson and Henderson that, in the absence of special circumstances, parties should bring their whole case before the Court so that all aspects of it may be decided (subject to appeal) once and for all is a rule of public policy based upon the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on forever and that a defendant should not be oppressed by successive suits where one would do”.

“These are rules of justice, intended to protect a party (not necessarily a defendant) against oppressive and vexatious litigation”.

“The right of access to the Court is not absolute but may be subject to limitations: these are permitted by implication since the right of access ‘by its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and of individuals’ ”.

“A limitation will not be compatible with Article 6(1) if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aims sought to be achieved.”

20. The applicant is not currently a registered medical practitioner in this jurisdiction. Accordingly, he cannot be erased or suspended from the register and conditions cannot be imposed on his registration. The penalties to which he is liable, pursuant to s.48 of the Act of 1978, are limited to admonition, advice or censure. Before any of these things could occur he would have to be found guilty of professional misconduct. If that occurred the Council might in its discretion refuse to permit him a further period of temporary registration, which form of registration is subject to a maximum time limit.

21. The Medical Council is discharging a public function in the hearing and determination of allegations of professional misconduct as well as observing the professions interest in promoting high professional standards and public confidence.

22. The allegations in question here relate to a time some six and a half years ago and it is manifestly in the interest of the applicant, the Council, the profession, the complainants and the public generally that these be resolved as soon as possible and without unnecessary or unreasonable delay.

23. It is also relevant to note that all times since first notification to him of the Medical Council’s consideration of allegations of professional misconduct in 1999 the applicant has had legal advice and representation of high quality. Thus assisted, he instituted and was partially successful in the first judicial review proceedings. It is in my view a very material fact that no tenable explanation whatever has been advanced, in pleadings, affidavit or oral argument, for the failure to raise the points now taken in relation to legal aid or funded legal representation when those proceedings were instituted and when the first order restraining the holding of an Inquiry was obtained. Mr. Cush S.C. for the applicant pointed out that the primary relief claimed in the first proceedings would, if granted, have had the affect of stopping the Inquiry into allegations of professional misconduct in limine. In that event, he said, no other relief would have been necessary. But the proceedings also sought, in the alternative, to attack only the allegations of sexual assault/indecent assault. This, substantially, was the relief actually granted in the first proceedings and it left eight allegations in respect of which there must be a hearing. This result, specifically contemplated in the first proceedings, clearly left open the need, as the applicant sees it, for legal aid or representation. But the applicant chose not to raise this topic in a legal forum for another two years, until the eve of the refixed Inquiry. This is unexplained.

24. I consider this to be the determining feature of the present proceedings. The applicant obtained on the 13th March, 2000 an order restraining the conduct of an Inquiry fixed for the next day on the ground that the Inquiry as proposed to be conducted was a denial of his legal and constitutional rights. That issue having been decided and the Inquiry refixed for the 20th February, 2000 he again sought to restrain its conduct or continuance on the basis that this would again constitute an invasion of his legal or constitutional rights, but on different grounds, those relating to legal aid or funded representation. No reason has been advanced, and none appears on the evidence, why these points could not have been raised two years previously. The applicant’s financial position had not worsened in the interval: he was impecunious at all material times. He had first raised the question of legal aid less than a month before the institution of the present proceedings, and no reason has been advanced for not raising it earlier. The information he received in reply to his solicitor’s letter of the 24th February, 2002 cannot have come as a surprise to any lawyer or doctor and no case has been made to the contrary. The issues in relation to legal aid are, therefore, to adapt the language of Henderson issues “which properly belonged to the subject of litigation and which the parties exercising reasonable diligence might have brought forward at the time” of the first proceedings. In the language of Johnson v. Gore Wood there are issues which might “sensibly” have been brought forward in the previous litigation. The present litigation in my view runs foul of the rule of public policy “based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on forever and that a defendant should not be oppressed by successive suits where one would do” in the words of Brooke L.J. in the passage cited above.

25. I would also, to the extent that it is an independent ground of objection, consider that the applicant has been guilty of delay which is gross, inordinate and inexcusable. The terms of order 84 of the Rules of the Superior Courts make clear the policy that relief by way of judicial review should be promptly sought. The applicant’s own conduct was to seek relief as a matter of great haste in circumstances of emergency, even though the emergency was wholly created by his own delay. He stopped the Inquiry once on the eve of its commencement and once after it had been under way for three days, with inescapable distress to the lay witnesses, especially those giving evidence of an intimate nature who had already given evidence twice and had been summoned to do so three times. Are we to have a fourth such occasion?

26. The applicant has numerous legal and constitutional rights in relation to the Inquiry into the allegations against him which he has quite properly and exhaustively been at pains to assert. But so also have the other participants in the procedures envisaged by Part V of the Medical Practitioners Act, 1978 and the public in whose interest that measure was enacted. If these rights, as well as those of the applicant, are to be respected, the Court cannot tolerate a further challenge to the Inquiry and its proceedings made, without explanation, two years after the first, and which could and should have been incorporated with it.

Conclusion.

27. For these reasons, alone, I would dismiss the appeal and affirm the order of the High Court. In those circumstances it is unnecessary to consider the other points raised.