High Court allows discovery of Medical Council transcript to ensure equality of arms in medical negligence trial.

Neutral Citation Number: [2010] IEHC 169

THE HIGH COURT

2008 565 P

BETWEEN

LUKE MIGGIN (A MINOR, SUING BY HIS MOTHER AND

NEXT FRIEND EMILY MIGGIN)

PLAINTIFF

AND

HEALTH SERVICE EXECUTIVE AND MICHAEL GANNON

DEFENDANTS

JUDGMENT of Mr. Justice Hanna, delivered on Friday 26th March, 2010

The plaintiff in this case brings proceedings by his mother and next friend. He alleges he suffered serious brain injuries during the

course of his delivery at the maternity unit at Mullingar General Hospital on the 28th day of February, 2006. The plaintiff says that, at

all material times, he was under the care both of the first defendant’s midwifery and nursing staff and the second defendant, a

consultant obstetrician and gynaecologist.

This case comes before me as an appeal from a decision of the Master of the High Court refusing discovery of a transcript of the

proceedings before the Fitness to Practice Committee of the Medical Council (“the Committee”) conducted in April, 2008, and

concerning a complaint made against the second named defendant as to the conduct and management of the plaintiff’s birth. We are

not presently concerned with the detail of what transpired before that committee. I should note, however, that the complaint against

the second defendant was not upheld and this carries with it possible implications with regard to the release or otherwise of this

transcript to the plaintiff as a consequence of an order of discovery and/or inspection.

Counsel for the plaintiff said that the discovery of the transcript of the said proceedings was essential for the conduct of the

plaintiff's case and to create an “equality of arms” between the parties. Counsel for the defendants argued that an order of discovery

should not be made against the second defendant Firstly, the transcript of the proceedings was impressed with a statutory privilege.

Secondly, although undoubtedly relevant, discovery of the said documentation was not necessary.

The enquiry before the Committee was conducted pursuant to the provisions of the Medical Practitioners Act 1978, (the “Act of

1978”) and in particular, s. 45 thereof. Section 45(1) of the said act provides, inter alia:-

“45(1) The Council or any person may apply to the Fitness to Practise Committee for an inquiry into the conduct of a

registered medical practitioner on the grounds of:-

(a) his alleged professional misconduct, or,

(b) his fitness to engage in the practice of medicine by reason of physical or mental disability,

and the application shall, subject to the provisions of this Act, be considered by the Fitness to Practise Committee.”

Subsections (4) and (5) of the said act provide as follows:-

“(4) When it is proposed to hold an inquiry under subsection (3) of this section the person who is the subject of the

inquiry shall be given notice in writing by the Registrar sent by pre-paid post to the address of that person as stated in

the register of the nature of the evidence proposed to be considered at the inquiry and that person and any person

representing him shall be given the opportunity of being present at the hearing.

(5) The findings of the Fitness to Practise Committee on any matter referred to it and the decision of the Council on any

report made to it by the Fitness to Practise Committee shall not be made public without the consent of the person who

has been the subject of the inquiry before the Fitness to Practise Committee unless such person has been found, as a

result of such inquiry, to be -

(a) guilty of professional misconduct . . . .”

The latter subsection gives a veto to the person about whom complaint has been made and who has successfully cleared himself or

herself of an allegation of professional misconduct as to publication of the findings of the committee, a veto which the second

defendant, quite properly and within his rights, has sought to employ. It is the defendant's case that subsection (5), cited above,

extends to the transcript of the proceedings before the Committee.

A significant feature of the proceedings before the Fitness to Practice Committee was that the said committee, as it was entitled to

do under s. 45(6) of the said act directed the plaintiff’s mother to produce the following:-

“All documentation in your power or possession in relation to your attendance at the Midland Regional Hospital at Mullingar

on 28th February, 2006, including but not limited to any notes prepared by you in relation to the treatment afforded to

you by hospital staff and in particular Dr. Gannon.”

Accordingly, the plaintiff's mother had to make, in effect, discovery of all material documents in her possession or power of

procurement including notes that she appears to have made during the course of the labour. The second named defendant’s lawyers

now have possession of those notes and, no doubt, should the opportunity arise, will utilise them in their client's interest.

The plaintiff’s mother attended the hearing before the said committee accompanied by her solicitor. Having completed her evidence,

she and her solicitor were requested by the Committee to leave the hearing. An application by her solicitor to remain on, by way of

holding a watching brief, was refused. Therefore, the plaintiff's mother and her solicitor are in a state of complete unawareness as to

what transpired before the committee, a position which contrasts sharply with that of the second defendant. He has full access to

the transcript, the mother's notes, the evidence which was given by the plaintiff’s mother and documents, such as reports (if any)

which may have been offered to the committee in defence of the second defendant.

A number of authorities were opened to me. The defendants placed significant reliance upon the decisions of both Costello P. in the

High Court and Barrington J. in the Supreme Court in the case of Barry v. the Medical Council and Anor [1998] 3 I.R. 368. In both

courts there was clear recognition of the discretion vested in the Committee by the Act of 1978, to decide whether or not

proceedings before it were conducted in public or in private. In that particular case, the plaintiff, a medical practitioner against whom

complaints had been made to the Medical Council, wished that the proceedings be conducted in public, given what he perceived to be

the ruination of his professional reputation hitherto. The Committee determined that it would press on with matters in private and this

decision was determined to be intra vires. Among the reasons given by Costello P. were that, given the nature of the complaints

against the plaintiff, and the risk that the proceedings might not take place if the hearing were held in public, the interests of justice

might be prejudiced and dealing with the matter in private would not offend, inter alia, the provisions of the European Convention on

Human Rights.

At pp. 380 to 381 Costello P. says:-

“The applicant's second submission is that the Committee's decision was ultra vires the Act of 1978. It is said that (a)

the Committee misconstrued the Act of 1978 by holding that it had a discretion to hold the inquiry in private or public, (b)

that the only discretion that the Committee had was to hold such part of the inquiry that might relate to confidential

patient-doctor relationship in camera and (c) its decision was accordingly, ultra vires.

The statute is silent as to whether or not the hearing should be in private or in public but it seems to me that the

Committee properly construed the statute by holding that it had a discretion in the matter. Section 45(1) of the Act of

1978 provides that the findings of the Committee and the decision of the Council on any report made to it by the

Committee ‘shall not be made public’ without the consent of the doctor, unless the doctor has been found guilty of

professional misconduct or unfitness to engage in the practice of medicine. This implies that the proceedings before the

Committee and the Council may be held in private. The statute does not prohibit a public hearing and if requested by the

doctor it may comply with such a request. Accordingly, a discretion exists. I have already held that there is no obligation

imposed by the Constitution on the Committee to hold its sittings in public and accordingly there is no consideration based

on the Constitution which would require a construction of the Act otherwise than is to be ascertained by the provisions of

the statute itself.”

In the Supreme Court, Barrington J. again identified and approved the discretion vested in the committee in the conduct of

proceedings before it. At pp. 391 to 392 he says:-

“The first question to decide is whether under the statute itself, leaving aside for the moment all questions of

constitutional interpretation, the Fitness to Practise Committee has a discretion or power to conduct its proceedings in

private. To this it appears to me that there can be only one answer and, indeed, I did not understand counsel on behalf

of the applicant to argue the contrary. Earlier in this judgment I have quoted s. 45(5) of the Act of 1978 which provides

that the findings of the Fitness to Practise Committee and the decision of the Council on any report made to it by the

Committee should not be made public without the consent of the doctor who has been the subject of the inquiry unless

such doctor has been found guilty of professional misconduct or unfit to engage in the practice of medicine. Clearly the

purpose of this provision is to protect the reputation of practitioners who have not been found guilty of professional

misconduct or unfit to engage in the practice of medicine. But such a provision would be pointless if the proceedings

before the Fitness to Practise Committee had been held in public. It therefore appears to me that s. 45(5) contemplates,

but does not necessarily require, that the proceedings before the Fitness to Practise Committee will have been held in

private. It is not therefore surprising to hear that the practice of the Committee has been to hold its proceedings in

private.

The present case is unusual in that the applicant, the practitioner against whom the complaints have been made, has

demanded that the proceedings be held in public. He has done this, he says, because the case has received so much

damaging advance publicity that his reputation as a doctor has been ruined and he would therefore welcome the

opportunity to vindicate his character in public.

In these circumstances the only question is not whether the Committee has the right to conduct its proceedings in

private but whether it has a discretion to conduct them in public. While the Act contemplates that proceedings before the

Fitness to Practise Committee shall be in private it does not require it. I can see no reason why the Committee should not

hold its proceedings in public if all parties were agreed and if the Committee itself thought it was the proper thing to do.

While therefore the normal procedure before the Committee is to hold its proceedings in private I see no reason why it

should not hold its proceedings in public in a proper case. In other words I think the Committee has a discretion in this

matter.”

Two important points emerge here. First, the Act of 1978, does not provide for an explicit discretion as to whether or not proceedings

are conducted in public or in private. The discretion is implied, but is, nonetheless, very real. The Act of 1978 does impose an explicit

embargo on publication of the findings of the Committee where a positive finding has been made regarding the medical practitioner

under scrutiny where he or she does not give consent. This consent extends, I repeat, to the finding. The act is silent with regard to

such matters as the transcript of the proceedings which, after all, in ordinary circumstances might or might not reveal the findings of

the Committee. On the other hand, unregulated release of transcripts of the proceedings may have the effect of thwarting the

discretion vested in the committee, as counsel for the defendant put it, “by the back door” thereby undermining the discretion.

Secondly, it is of interest to note, and I think the parties were in agreement on this, that were the provisions of the Medical

Practitioners Act 2007, in force and governing these proceedings, we would not be here, as provision is made therein for the

publication of the transcript of the proceedings if the Medical Council (“the Council”) is of opinion that publication is in the public

interest. Whereas I would not presume to guess what the Council might do in such purely hypothetical circumstances, I can,

however, state that it would be confronted with a persuasive argument to exercise its discretion in favour of the plaintiff.

Here we must deal with the provisions of the Act of 1978 and this case must be decided according to these provisions.

DECISION

1. In so far as any conflict lies between the public interest in the production of documents or in the maintenance of their

confidentiality, under the provisions of the Constitution such conflict falls to be resolved by the courts. Where the courts seek to

resolve this conflict in favour of the party seeking discovery and/or inspection of the documents by way of discovery, such a party is

prohibited from employing the documents other than in the context of the action in question. The courts have an inherent jurisdiction

to regulate in this area. (See Ambiorix and Others v. The Minister for the Environment and Others [1992] 1 I.R. 277. See also O’Brien

v. Ireland [1995] 1 I.R. 568).

2. In the present case, there is no challenge to the right of the Committee to exercise its discretion to hear the complaint against the

second defendant otherwise than in public. Furthermore, a legal challenge has not been made to the decision of the Committee to

exclude the plaintiff’s mother and her solicitor from the proceedings after she had concluded giving evidence. Of course, the plaintiff

does complain about possible tactical and forensic shortfall resulting from this forced absence, and I am invited to weigh this actuality

in assessing where the balance of justice lies in this case.

3. I expressly adopt the rationale of Barr J. in Eastern Health Board v. The Fitness to Practice Committee of the Medical Council and

Others [1998] 3 I.R. 399 at p. 428. Under the heading “CONCLUSIONS” he says, beginning at para. 3:-

“3. A statutory imperative that proceedings of a particular nature be held in private (as provided, for example, by s. 5 of

the Punishment of Incest Act, 1908) does not imply that there is an absolute embargo on disclosure of evidence in all

circumstances. Such an embargo requires specific statutory authority to displace judicial discretion at common law to

permit disclosure in appropriate circumstances. If an absolute embargo on the publication of evidence adduced in the

course of in camera proceedings in all circumstances were implied from a mandatory requirement that such proceedings

be held in private, then grievous harm could be done to public and private interests and to the pursuit of justice. For

example, if in the course of proceedings in camera, it was established that a witness was guilty of perjury or some other

crime, the trial judge would be unable to refer the matter to the Director of Public Prosecutions with a view to having a

criminal prosecution brought against the wrongdoer. Likewise, if it emerged in evidence protected by the rule that a

professional witness, or a lawyer acting in the case, was guilty of professional misconduct, the trial judge would be

inhibited in referring the matter to the offender's professional body for investigation. It would also follow if there was an

absolute embargo that a child concerned in such proceedings would be spancelled in pursuing claims which he or she

might have for damages arising out of evidence protected by the in camera rule, notwithstanding that the primary

purpose of the rule in such cases is to protect the minor. A major far-reaching change in the law, which sets aside

established practice, could not arise merely by implication derived from a mandatory statutory requirement that certain

proceedings shall be held in private but, in my view, would require specific statutory authority.

4. I have been unable to discover any specific statutory provision in Irish law which provides that there is an absolute

embargo in all circumstances on the publication of information deriving from proceedings held in camera.

5. There is an established practice at common law recognised in England and in this jurisdiction (see P.S.S. v. Independent

Newspapers (Ireland) Ltd. (Unreported, High Court, Budd J., 22nd May, 1995), that the court in proceedings held in

camera has a discretion to permit others on such terms as the judge thinks proper to disseminate (and in appropriate

cases to disseminate himself/herself) information derived from such proceedings where the judge believes that it is in the

interest of justice so to do, due and proper consideration having been given to the interest of the person or persons

intended to be protected by the conduct of the proceedings in camera. In given circumstances the judge may find that a

crucial public interest, such as the prosecution of crime or the protection of vulnerable children, takes precedence over

the interest of the protected person in non-disclosure of the information in question.

6. In considering a conflict between the public interest or the interest of a person seeking disclosure on the one hand,

and the interest of an individual in retaining the full benefit of the in camera rule on the other hand, the court is bound by

the concept that the paramount consideration is to do justice – see In re R. Ltd. [1989] I.R. 126.”

4. In so far as any claim of privilege is advanced by the defendants, it has been held that transcripts of proceedings before the

Committee do not bear such privilege and are amenable to an order for discovery. (See Buckley v. Bough (Unreported, High Court,

Morris J., 2nd July, 2001)).

5. The guiding consideration in evaluating the necessity for discovery is the overriding interest in the administration of justice.

Discovery must, of course, be relevant and necessary. Necessary does not connote absolute necessity. The party seeking discovery

should show, for example, that he is at a disadvantage in litigating the case by not having sight of documents in possession of the

other side. (See Kelly J. in Ryanair plc v. Aer Rianta c.p.t. [2003] 4 I.R. 264). In this case, it is beyond question but that the

defendants and, specifically, the second defendant have in their possession documents which could be of considerable forensic

assistance to the plaintiff. The transcript of the disciplinary proceedings could reveal matters of great assistance to the plaintiff, for

example, in cross examination. The second defendant must gain an advantage by knowing everything that transpired at the said

hearing. At the same time, that defendant has in his possession the plaintiff's mother’s own notes of what transpired during that

period of time which, no doubt, will be submitted to intense scrutiny at the substantive hearing of this case. The foregoing

circumstances can only confer a litigious advantage on the defendants. In Flynn v. R.T.E. and Others [2000] 3 I.R. 344, Kelly J. cites

Bingham M.R. in Taylor v. Anderton [1995] 1 W.L.R. 447 at P 462 as follows:-

“… The crucial consideration is, in my judgment, the meaning of the expression ‘disposing fairly of the cause or matter’.

Those words direct attention to the question whether inspection is necessary for the fair determination of the matter,

whether by trial or otherwise. The purpose of the rule is to ensure that one party does not enjoy an unfair advantage or

suffer an unfair disadvantage in the litigation as a result of a document not being produced for inspection. It is, I think, of

no importance that a party is curious about the contents of a document or would like to know the contents of it if he

suffers no litigious disadvantage by not seeing it and would gain no litigious advantage by seeing it. That, in my judgment

is the test.”

In Science Research Council v. Nasse case [1979] 3 All E.R. 673 at 684 Lord Salmon in his speech said:-

‘Since confidential documents are not privileged from inspection and public interest immunity fails, the tribunal, which for

this purpose is in the same position as the High Court and the County Court, may order discovery (which includes

inspection) of any such documents as it thinks fit, with this proviso: ‘discovery shall not be ordered if and so far as the

court [or tribunal] is of opinion that it is not necessary either for disposing fairly of the proceedings or for saving costs.’

If the tribunal is satisfied that it is necessary to order certain documents to be disclosed and inspected in order fairly to

dispose of the proceedings, then, in my opinion the law requires that such an order should be made; and the fact that the

documents are confidential is irrelevant.’”

6. The defendants argue that there is an equality of arms between the parties. After all, the plaintiff is being advised by lawyers of

renowned expertise in the conduct of medical negligence litigation. He has available to him medical experts of great eminence, no

doubt, who have all the information they need to be gleaned from the plaintiff's mother and, inter alia, the hospital notes and records.

The plaintiff simply does not need this transcript certainly to the extent that it would necessitate dispensing with such privilege or

confidentiality or both which might otherwise shield the transcript from discovery. I cannot accept this argument. The transcript is

not the “Rolls-Royce” referred to by Geoghegan J. in Carroll and Co. Ltd. and Others v. Minister for Health and Children and Others

[2006] 3 I.R. 431. On the contrary, and as I have already noted, there is the potential that this could constitute a formidable weapon

in either supporting the plaintiff's case or undermining the case of the second named defendant. It may provide powerful material. It

may not. The plaintiff, of course, possesses some strong cards. The fact, however, that the second defendant possesses the full

pack, in all the circumstances of this case, creates, in my opinion, an inequality of arms.

7. I must apply a test of proportionality (see Independent Newspapers v. Joseph Murphy Junior [2006] 3 I.R. 566, Clarke J.). In my

view, the discovery of the transcript in question in circumstances where it can only be used in the context of a trial where serious

allegations of negligence are going to be levelled against the second defendant in any event, is not disproportionate to the second

defendant’s right to confidentiality. It does not, in my opinion, abrogate in any way the right of the Committee to conduct its

proceedings according to its legally and constitutionally informed discretion. Balancing justice in the specific circumstances of this

case, I am of the view that the discovery of the transcript of the proceedings is warranted, limited in use as I've indicated above,

and in circumstances where the court can exercise its inherent jurisdiction to police such discovery. I allow the appeal and direct that

the Order of the Master of the High Court be amended accordingly.