On the 22nd of October 2014, the Plaintiff was acquitted of 16 charges before the District Court relating to importing medicines without a licence into the State.   In September 2016 the Medical Council proposed to open an inquiry before the Fitness to Practice Committee regarding, inter alia, whether he had prescribed an unauthorised medicine to a patient in his GP practice.  The Plaintiff claimed that he was being subjected to disciplinary proceedings by his professional body in relation to matters for which he was acquitted by the District Court in October 2014 and so the disciplinary proceedings should not go ahead.

On 6th of October 2015, the PPC determined that the matter required further inquiry. A Notice of Inquiry was furnished by the CEO of the Medical Council to the Plaintiff on the 22nd of September, 2016.  The Plaintiff sought leave to bring a judicial review against the Medical Council’s decision to undertake an inquiry on the basis that the proposed inquiry related to issues that were ‘res judicata’ – i.e. had already been adjudicated upon by a competent court.

The Plaintiff’s application was dismissed, and an appeal of that refusal was subsequently brought by the Plaintiff.  That appeal was heard and dismissed in an ex tempore judgment delivered by the Court of Appeal on 3rd February, 2020.  The Fitness to Practice Committee (FTPC) inquiry was listed on 13th February, 2020, but was adjourned at the request of the Plaintiff and had been rescheduled for a number of other dates, the most recent of which was due to take place on 23rd February, 2021.  In these proceedings before the High Court, the Plaintiff challenged the decision of the CEO of the Medical Council to issue a Notice of Inquiry.  However, rather than seeking to have the decision judicially reviewed, he issued a plenary summons seeking various Declarations regarding the proposed holding of a disciplinary inquiry before the Fitness to Practice Committee (“FTPC”) of the Medical Council.

The Court noted that no matter how one views the Plaintiff’s proceedings, the essential nature of the subject matter is to do with the administrative decisions/exercise of discretion of a public authority, in this case, the Medical Council, about which the Plaintiff is dissatisfied, and for this reason, this Court concluded that the proceedings are judicial review in nature. It is therefore against this background that the High Court considered the declaratory relief sought by the Plaintiff.

The main issues the Plaintiff raised were as follows:

1. The Plaintiff claimed that the proposed inquiry to be held by the Fitness to Practice Committee is ‘res judicata’ because of the earlier acquittal of the Plaintiff by the District Court.
2. The Plaintiff also claimed that the Medical Council has usurped the powers of a court contrary to Articles 34 and 37 of the Constitution as it is involved in the administration of justice.
3. The Plaintiff also claimed that the practice adopted by the Medical Council amounted to a breach of the equality provisions in Article 40.1 on the basis that they amount to invidious discrimination of a professional in contrast to how a non-professional is treated, because a non-professional who is acquitted by the District Court is not subject to any inquiry regarding his licence or entitlement to continue working.

On analysis of the matters before the court, the court opined that it was clear that there was no overlap between the charges of which the Plaintiff was acquitted by the District Court and the issues to be enquired into by the Fitness to Practice Committee. However, the District Court did not charge or acquit or determine whether the Plaintiff was guilty of prescribing lidocaine to one or more patients, which is one of the matters to be enquired into by the Fitness to Practice Committee. A similar point can be made in relation to all the other issues for consideration by the Fitness to Practice Committee. Therefore, ‘res judicata’ can have no application to the proposed inquiry by the Fitness to Practice Committee and therefore what appears to be the core claim in these proceedings falls away.  Accordingly, there is no res judicata reason for the inquiry to be stopped, nor indeed any basis for any Declaration to that effect.

Accordingly, it was clear to the Court that, even if there was an overlap between the FTPC issues and the District Court issues in the Plaintiff’s case, it still remains the case that there is no basis for the granting of a Declaration that is erroneous.
https://www.courts.ie/view/judgments/ab8068ab-d91b-4a5a-a365-4fa4b8088cd2/c3ab2e2a-5564-4fb5-b1de-9cba7a35e0d5/2021_IEHC_606.pdf/pdf