FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41957/98 by James BARRY against Ireland

The European Court of Human Rights (Fourth Section) , sitting on 6 July 2000 as a Chamber composed of

Mr G. Ress, President , Mr A. Pastor Ridruejo, Mr L. Caflisch, Mr J. Makarczyk, Mr V. Butkevych, Mr J. Hedigan, Mrs S. Botoucharova, judges , and Mr V. Berger, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 27 January 1998 and registered on 30 June 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicant is a British national, born in 1925 and living in Cork, Ireland. He is represented before the Court by Mr O’Sullivan, a lawyer practising in Cork, Ireland.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant is a medical doctor. In July 1995 the Medical Council (“the Council”) was informed of a number of complaints against the applicant by two female patients. In August 1995 the police informed the Council that they were investigating allegations of indecent assault by the applicant. On 5 October 1995 the Council received written complaints from the two patients to which the information of July 1995 referred. The complaints included allegations of sexual assault and blackmail.

On 19 October 1995 the Fitness to Practice Committee (“the Committee”) of the Council decided that there was a prima facie case for the holding of an inquiry. On 27 October 1995 the High Court made an order restraining the applicant from practising medicine pending the outcome of the proposed inquiry. That order was not published. However, a further order of the High Court dated 6 November 1995, removed the applicant’s name from the register of practitioner’s and restrained him from practising medicine pending the inquiry and all consequent proceedings. The High Court also agreed that the Council could make public the “sequence of events” including the orders of 27 October and 6 November 1995. The Council issued a press release on the same day which included the applicant’s name, the terms of those two High Court orders and details as to how an individual can complain to the Council about a medical practitioner. Further complaints were then received from former female patients of the applicant. The applicant also claims that the chairperson of the Committee also made public statements about the case and that newspaper articles appeared which could only have emanated from the Council.

On 11 November 1996 the oral hearing before the Committee commenced. The applicant applied to have the inquiry held in public, stating that he wished to redress the damage done to his reputation by the publicity to which the case had already been subject. In exercising its discretion on the subject, the inquiry considered, inter alia , the necessity to ensure that members of the public could freely and without repercussions make complaints regarding their medical practitioners; the necessity to protect the confidentiality of the doctor/patient relationship; the nature of the allegations made; the likely affect on the administration of justice of a hearing in public; the powers of the Committee to protect the private lives of individuals even if the inquiry was held in public; the protection against bias offered by a public hearing and the guarantees offered to the practitioner by the appeal to the High Court. The Committee found that the principles of natural justice and fair procedures required the inquiry to be held in private.

The applicant sought leave to apply to the High Court by way of an application for judicial review for an order of certiorari quashing the above decision of the Committee. The High Court refused leave. On 13 December 1996 the Supreme Court gave leave to so apply to the High Court on two grounds. In the first place, to inquire whether the Committee was entitled to rule that the whole of the inquiry be held in private, the applicant arguing that this was contrary to the Medical Practitioners Act 1978 (“the 1978 Act”), to the Constitution and to Article 6 of the Convention. Secondly, to enquire as to whether the proceedings were prosecuted, and the decision (that the inquiry was to be held in private) was made, in circumstances which were inconsistent with the objective separation of the functions of prosecutor and adjudicating tribunal. Included in this latter ground, were the propositions that the proceedings before the Committee were unfair and that the Committee’s impartiality had been compromised.

On 11 February 1997 the High Court rejected the application and awarded costs against the applicant. The High Court noted in its judgment that, when it considers decisions of the Council brought before it, it was not exercising an appellate jurisdiction as the High Court will “hear all the evidence as if it was a court sitting at first instance”. The Supreme Court rejected the applicant’s appeal by judgment dated 16 December 1997 and costs were awarded against the applicant. In its judgment, that court noted that only the High Court can decide to remove a practitioner’s name from the register and that the applicant would be “entitled to a full rehearing and possibly to a rehearing in public” if and when the Council’s decision was brought before the High Court, the Supreme Court adding that when the procedure has been exhausted in the Committee, in the Council and in the High Court, a final appeal would lie to the Supreme Court, but it was not the function of the Supreme Court to monitor the proceedings as they unfolded. Costs were awarded against the applicant.

The proceedings against the applicant under the 1978 Act have not yet terminated and have been adjourned pending the determination of criminal proceedings against him.

B. Relevant domestic law and practice

The Medical Practitioners Act 1978 established the Council and provided for the establishment of the Committee. It is the Committee which decides whether it is necessary to hold an inquiry into the conduct of a registered medical practitioner. If the Council is satisfied that it is in the public interest to do so, it may apply to the High Court for an order that the registration of any practitioner shall not have effect pending that inquiry. On completion of the inquiry, the Committee reports to the Council. Where it is found that the practitioner has committed acts of professional misconduct or is unfit to engage in the practise of medicine by reason of an alleged physical or mental disability, the Council may decide that that person’s name be erased from the register, that his or her registration be suspended for a certain period of time or that certain conditions be attached to the retention in the register of that person.

In any of the above cases, the practitioner in question can apply to the High Court to cancel the decision of the Council and that court may either cancel the Council’s decision, direct the erasure or suspension of the practitioner’s registration or attach such conditions to retention of the practitioner’s name on the register as it thinks fit. In the absence of such an application by the practitioner, the Council may apply to the High Court for confirmation of its decision. In such circumstances, and unless it sees good reasons to the contrary, the High Court shall confirm the decision of the Council. A High Court hearing on such an application by a practitioner is conducted as an entire trial of the issues involved and is not a mere appeal from the combined decisions of the Committee and the Council. The hearing, save in exceptional circumstances, is in public and the onus of proof lies on the Council.

Accordingly, the Committee’s findings have no legal effect on the practitioner’s right to practice and the Council’s decision has no legal effect until confirmed by the High Court, which court may cancel the decision of the Council or vary it.

COMPLAINTS

The applicant submits that that he was entitled to a fair and public hearing before an impartial tribunal at the Committee stage of the inquiry and therefore by taking judicial review proceedings he was asserting his rights under the Convention. He complains that in awarding costs against him, he was penalised (in the sum of over IR£100,000) for asserting his rights under the Convention and points out that, regardless of the outcome of the domestic proceedings, he must pay these costs. He invokes Articles 6 § 1 and 13 of the Convention.

THE LAW

The applicant complains, under Articles 6 and 13 of the Convention, that he was denied a fair and public hearing by an impartial tribunal in the course of the inquiry before the Committee under the 1978 Act.

He confirms that the proceedings against him under the 1978 Act have not yet terminated but contends that his application is not premature because the protections of Article 6 § 1 must be available at each stage of those proceedings and, accordingly, any penalty resulting from his attempts to ensure this, including a substantial costs’ order against him, constitutes a violation of Articles 6 § 1 and 13 of the Convention.

However, the Court recalls that, in considering whether proceedings concerning the determination of disputes over an individual’s civil rights comply with Article 6 of the Convention, account must be taken of the proceeding as a whole so that, as was explained in the Court's judgment in the case of Albert and Le Compte v. Belgium (10 February 1983, Series A no. 58, p. 16, § 29), even where the first instance adjudicating body does not comply with the requirements of Article 6 § 1 in some respects, no violation of the Convention will be found if the proceedings before that body are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6 § 1 (Bryan v. the United Kingdom judgment of 22 November 1995, Series A no. 335-A, at § 40).

The Court also notes that the proceedings under the 1978 Act have not yet terminated. As underlined by the courts in the domestic proceedings, the 1978 Act provides for a full and, in principle, public rehearing before the High Court on all matters of fact and law which have been considered by the Committee and Council. When Article 6 § 1 does not require that all its guarantees must be provided at first instance and where the alleged deficiencies can be remedied before later instances, it follows that a costs’ order consequent on the applicant’s unsuccessful attempt (no. 15434/89, Dec. 15.2.90, D.R. 64, p. 232) to obtain those guarantees at first instance cannot of itself constitute a violation of Article 6 § 1 of the Convention. In such circumstances, the applicant’s complaints about the 1978 Act proceedings and concerning the lack of a fair and public hearing by an impartial tribunal are premature and, as such, manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Vincent Berger Georg Ress Registrar President