High Court: Doctor who was sanctioned by Medical Council is refused judicial review
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A doctor who was sanctioned with an “advice” due to a finding of poor professional performance has been unsuccessful in an application for judicial review in the High Court.
About this case:
- Judgment:
The doctor sought orders quashing the sanction, and also submitted that the lack of a right to appeal the sanction was unconstitutional, however Justice Meenan said there was no basis for departing from Akpekpe v. Medical Council 3 IR 420 and refused all reliefs sought.
Background
Dr Saqib Ahmed is a registered medical practitioner within the meaning of the Medical Practitioners Act 2007 and was employed as a medical oncology registrar in the Mid-Western Regional Hospital, County Limerick.
Dr Ahmed was the subject of a fitness to practice inquiry, held before the Fitness to Practice Committee of the Medical Council under Part 8 of the Medical Practitioners Act 2007. This inquiry arose from a letter of complaint sent to the Medical Council, dated 26th November, 2012.
The inquiry took place before the Fitness to Practice Committee between March and July 2015.
The Fitness to Practice Committee issued a report listing, inter alia, the allegations that were either proven or not proven or withdrawn, the names of those who gave evidence and the various documents considered.
In respect of allegation 7(b) the report stated that this was established this beyond a reasonable doubt, that it “amounted to poor professional performance” and was “a very serious failure to meet standards of competence that can reasonably be expected of an oncology registrar.”
Dr Ahmed was however admonished of other allegations
Based on the report, the Medical Council imposed the sanction of “advice” as is provided for in s. 71(a) of the Medical Practitioners Act 2007.
Medical Practitioners Act 2007 does not provide for any appeal where a sanction under s. 71(a) is imposed.
Judicial review
Dr Ahmed applied for judicial review for the followings reliefs:
High Court discussion
Mr Justice Meenan said that it could not be stated that the finding made by the Fitness to Practice Committee was irrational or unreasonable; there was clearly evidence before the Committee upon which it could reach the decision it did; as such Justice Meenan stated that Dr Ahmed was not entitled to an order of certiorari quashing the report.
On the absence of a right to appeal, Dr Ahmed submitted that the sanction of “advice” so imposed made his vocational options more limited.
Dr Ahmed submitted that ss. 71 and 75 of the Act of 2007 were repugnant to the Constitution insofar as they deny a right of appeal where a finding of poor professional performance is made and the sanction imposed is an “advice”.
In this regard, Justice Meenan considered Akpekpe v. Medical Council 3 I.R. 420, in which Kearns P found no basis for finding the Act to be unconstitutional.
Justice Meenan stated that there was no reason to depart from the decision in Akpekpe
Furthermore, Dr Ahmed’s argument in respect of a breach of his right to work did not advance his claim
Dr Ahmed is not entitled to a declaration that ss. 71 and 75 of the Act of 2007 are repugnant to the Constitution
Advancing his arguments regarding the ECHR, Dr Ahmed relied on Ghosh v. General Medical Council 1 WLR 1915, however Dr Meenan stated that this case was not authority for the submission that an appeal ought to lie in a situation where the sanction imposed is “advice”.
Though in the Akpepke case, the applicant did not specify the breach of any particular rights under the Convention and did not seek a declaration of incompatibility of the Act of 2007 under the European Convention on Human Rights Act, 2003, Justice Meenan was satisfied, on the authorities referred to and on the wording of Article 6 itself, that Dr Ahmed was not entitled to the declarations sought.
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