An Affront To Logic And Language - Court Of Appeal Upholds Constitutionality Of The Medical Council Appeal Process

• Published date: 28 September 2021
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Constitutional & Administrative Law, Trials & Appeals & Compensation, Human Rights
• Law Firm: William Fry
• Author: Ms Margaret Muldowney, Fiona Barry and Mary Cooney

The Court of Appeal (CoA) has dismissed an appeal brought by a consultant oncologist (appellant) in respect of a finding against him of poor professional performance (Finding) made by a Medical Council Fitness to Practice Committee (Committee) in 2015.

The appellant, a registrar in medical oncology, was found guilty of poor professional performance for his failure to request basic tests including blood, urine, and kidney function tests when a 28-year-old patient was transferred to his care from a district hospital after a CT scan showed a large, rapid-growing abdominal mass. On consideration of the Finding, the Medical Council imposed the sanction of 'advice' in writing but did not impose conditions on his registration. In the absence of conditions being imposed, there was no entitlement under the Medical Practitioners Act 2007 (2007 Act) to appeal the Committee's finding to the High Court.

The appellant subsequently brought judicial review proceedings, to challenge both the Finding and the decision of the Medical Council to impose the sanction. The appellant also challenged the constitutional validity of sections 71 and 75 of the 2007 Act which precluded him from appealing the finding, and their compatibility with the right to a fair trial under the European Convention on Human Rights (ECHR).

The High Court (Court) dismissed the judicial review in 2018. The Court held that the Finding could not be said to be irrational or unreasonable, and having regard to the wording of Article 6 EHCR, refused the application for a declaration of incompatibility. The appellant appealed to the CoA.

Decision of the Court of Appeal

(i) Certiorari

Ms Justice Aileen Donnelly, on behalf of the CoA, stated that the issue was whether the Court was justified in its conclusions that there was evidence before the Committee on which it could reach the decision that the doctor was guilty of poor professional performance.

The CoA held that the suggestion of insufficient evidence from which the Committee could reach a finding of poor professional performance against the appellant could "only be described as an affront to logic and language". The CoA found that the decision reached by the Committee was rational, reasonable, and proportionate to the gravity of the allegation, as was the imposition of the sanction. The CoA observed that

"there is nothing inherently disproportionate in a finding of poor professional performance based upon a single incident or in such a finding where...