Procedural Fairness in Medical Registration: High Court Clarifies Safeguards in Sheill v Medical Council of Ireland

In the recent decision of Sheill v Medical Council of Ireland [2024] IEHC 710, the High Court has examined the fairness of the Medical Council’s procedure in reviewing applications for registration. In our latest article, Eamon Harrington, Partner CKT and Ana Harrington, Trainee Solicitor CKT review the High Court decision and its implications.

Background

The Appellant had been a medical practitioner in England who had been registered with the General Medical Council (“the GMC”) since 1987. He had also been registered in Ireland in 1987 and 1988, but this registration was withdrawn in 1988. In 2008, following a fitness to practice hearing and subsequent High Court appeal in England, he was erased from the register in the UK. Among the allegations which led to this erasure were a cavalier approach to the prescribing and storage of medications, ignoring guidelines in the use of medications, ignoring instructions of the Healthcare Commissions and GMC Interim Orders Panel, and rude and abusive behaviour towards patients.

In July 2017, the Appellant applied to be registered in Ireland. His application was initially considered by the Registration and Continuing Practice Committee, who felt that the Appellant did not show sufficient insight into the circumstances that had led to his erasure from the UK register, and that those circumstances themselves were serious. The Committee recommended that the application be refused, and notified the Appellant of this recommendation.

The Appellant appealed the outcome in November 2017, and this appeal was heard in private by a Review Panel in 2022 over 4 days. Again however, the Panel recommended that the Appellant’s application be refused.

The Medical Council then convened in April 2023 to discuss the application, and the Appellant was again permitted to make submissions. It ultimately accepted the Review Panel’s recommendation and refused the Appellant’s application.

Appeal to the High Court

The Appellant appealed the decision to the High Court under s. 54(3) of the Medical Practitioners Act, 2007. In particular, he argued the following:

• Although these appeared to be administrative proceedings only, in reality, this was a Fitness to Practice review. It would have substantial implications for his reputation and livelihood and should therefore attract procedural safeguards under the ECHR and/or Irish Constitution. In particular, tribunals should be in public, and their reports and findings should be publicised.

• The procedures were also procedurally unfair as they used information from another jurisdiction and from the internet, which was never tested by the Medical Council, and he should have been entitled to cross-examine his accusers (these being the patients in the UK who had made complaints about him).

• The original GMC Fitness to Practice decision had been flawed and the GMC investigator had been biased against him.

• The Medical Council should have automatically entered him on the register as he was medically qualified, and then conducted Fitness to Practice proceedings.

• There was substantial delay in the procedure.

• The Medical Council had discriminated against him on the basis of his sexual orientation, as a heterosexual doctor would not have been treated in the same way.

The Court’s Decision

The Court found that the Medical Council procedures were  administrative proceedings, but that certain fundamental safeguards should apply given the significant implications of any decision. The question was whether, ‘in the round’ sufficient safeguards were in place, and the Court found, in this case, there were. In particular:

• The Appellant was afforded the opportunity to call witnesses but declined.
• He was afforded the opportunity to call whatever evidence he wished.
• He was given ample time to make submissions, which he did.
• He was given the right to legal representation.
• He was provided with copies of the relevant materials in advance.
• He had failed to raise several of his complaints during the course of the Medical Council procedures, and so the Judge declined to consider these at the High Court stage.
• The Review Panel had the benefit of advice from legal counsel.
• The Review Panel did not ‘rubber stamp’ the decision of the GMC but was entitled to attach such weight to it as it considered appropriate.

Addressing the Appellant’s other arguments, the Court stated that:

• The Medical Council is not obliged to automatically accept every application for registration.
• Any delay in the Medical Council’s procedures could not be described as blameworthy, given that it was largely due to the Appellant’s own health issues, and to a lesser extent the COVID-19 pandemic.
• The Appellant’s allegations of discrimination and bias should not have been made. They were advanced without any basis or evidence, and had the potential to cause unwarranted stress, anxiety and reputational damage.

Ultimately, the High Court refused the appeal.

Discussion

While the Court accepted that reviewing an application for registration was an administrative procedure, it did find that it would still require sufficient safeguards given that it affects an individual’s fundamental rights. The Court also noted  that what constitutes sufficient safeguards would depend on the facts of an individual case. There is no ‘one-size-fits-all’ rule.

The Court also referenced the decision in Shatter v. Guerin [2021] 2 IR 415 which criticised obiter the potential over-extension of criminal-trial-type rights to the extent that the judicial arm of government could become unworkable. Plainly, applicants cannot and should not expect the full suite of rights they would enjoy in a criminal trial, but they are nonetheless entitled to a fair process.