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Issue of legal aid could have been raised by medical practitioner in earlier judicial review proceedings

By: Mark Tottenham BL

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Supreme Court dismisses appeal from High Court, and affirms refusal to grant an order of prohibition in respect of an inquiry by the Fitness to Practice Committee of the Medical Council, where the practitioner claimed that he was prejudiced in not having been granted legal aid in respect of the inquiry, on the grounds that: (a) the practitioner had applied for judicial review previously on other grounds, and failed to raise the issue of legal aid although it was open to him to do so; and (b) the practitioner was guilty of inordinate and inexcusable delay in relation to the second application for judicial review.

Keane CJ (concurring with Hardiman J): Judicial review - application to prohibit Medical Council from holding inquiry - Part V of the Medical Practitioners Act, 1978 - failure to provide legal aid for purpose of inquiry - alleged failure to vindicate his right to his good name - right to earn livelihood - application brought outside time limit - O. 84 r. 21 of the Rules of the Superior Courts - failure to raise issue of legal aid in earlier judicial review proceedings - abuse of process - appeals to Supreme Court by way of rehearing - whether respondent obliged to file notice in answer to notice of appeal.

Hardiman J (nem diss): Appeal from dismissal of judicial review - medical graduate of school in Pakistan - commenced work in Dublin in 1997 - accusation of sexual assault against two female patients - acquitted on both counts in 1999 - application for registration as medical practitioner - decision by Fitness to Practice Committee to hold inquiry - grant of leave to apply for judicial review in 2000 - first judicial review concerned with alleged double jeopardy - second judicial review concerned with failure to provide legal aid or legal representation - Medical Council not in a position to make legal aid available - failure to raise issue of legal aid at an earlier state - parties bound not only by points that they did raise in proceedings, but points which they might have raised but did not raise - delay - distress to witnesses.

"It is also relevant to note that all times since first notification to him of the Medical Council's consideration of allegations of professional misconduct in 1999 the applicant has had legal advice and representation of high quality. Thus assisted, he instituted and was partially successful in the first judicial review proceedings. It is in my view a very material fact that no tenable explanation whatever has been advanced, in pleadings, affidavit or oral argument, for the failure to raise the points now taken in relation to legal aid or funded legal representation when those proceedings were instituted and when the first order restraining the holding of an Inquiry was obtained."

"I would also, to the extent that it is an independent ground of objection, consider that the applicant has been guilty of delay which is gross, inordinate and inexcusable. The terms of order 84 of the Rules of the Superior Courts make clear the policy that relief by way of judicial review should be promptly sought. The applicant's own conduct was to seek relief as a matter of great haste in circumstances of emergency, even though the emergency was wholly created by his own delay. He stopped the Inquiry once on the eve of its commencement and once after it had been under way for three days, with inescapable distress to the lay witnesses, especially those giving evidence of an intimate nature who had already given evidence twice and had been summoned to do so three times. Are we to have a fourth such occasion?"

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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