Michael Shine -v- The Fitness to Practise Committee of the Medical Council and anor SUPREME COURTJudgment was delivered by Mr Justice Kearns on July 14th, Mrs Justice Denham, Mr Justice Hardiman, Mr Justice Geoghegan and Mr Justice Fennelly concurring
JUDGMENT
The Supreme Court overturned a High Court ruling that a Fitness to Practise hearing into conduct that had been the subject of proceedings in the Circuit Criminal Court, where the applicant had been acquitted, should not go ahead because of the double jeopardy rule.
BACKGROUND
Dr Michael Shine, the respondent in the appeal, is a retired consultant surgeon who worked in Our Lady's Hospital in Drogheda. Between 1994 and 1997 a number of complaints were made to the Medical Council about his conduct, specifically referring to alleged indecent assaults carried out over a period ranging from 1964 to 1994. The Medical Council asked the Fitness to Practise Committee to conduct an inquiry.
Complaints were also made to the Garda, and on December 23rd, 1996, 14 summonses relating to 11 complainants were issued.
Two further summonses relating to six further complainants were issued subsequently. They related to the same incidents that had given rise to the complaints to the Medical Council.
Dr Shine took judicial review proceedings seeking to prevent a trial on these complaints on the grounds of delay, but these were unsuccessful, and the criminal trial went ahead in relation to six of the complainants in October 2003, resulting in him being acquitted.
Some of the complaints to the Medical Council were struck out, but a number remained, relating to complaints that he had carried out inappropriate or improper medical examinations which had no medical basis or justification; breached the trust inherent in the doctor-patient relationship; and brought the medical profession into disrepute.
Dr Shine's solicitors wrote to the Medical Council asking that the complaints be dismissed on the grounds of delay.
The Fitness to Practise committee responded by pointing out that some of the delay resulted from requests from Dr Shine. He then took judicial review proceedings seeking to prevent the inquiry.
He was granted leave to bring the proceedings following a hearing by Mr Justice Liam McKechnie. The grounds on which he had sought leave all related to the question of delay.
The judicial review proceedings came up for hearing before the late Mr Justice Diarmuid O'Donovan. He concluded that the question of whether complaints ought to be upheld would depend on the relative credibility of the complainants, and that the lack of records was unlikely to prejudice his [Dr Shine's] ability to defend himself.
However, he granted the review on the grounds that, given that he had been acquitted of charges based on complaints from these complainants, he would be exposed to the risk of double jeopardy by a further inquiry by the Fitness to Practise Committee.
The Medical Council appealed against this ruling, contending that the question of double jeopardy had not been in the grounds for granting leave for judicial review, and was not argued before the court.
DECISION
Mr Justice Kearns said that it was quite clear that the ground on which Mr Justice O'Donovan's judgment was granted was not one of the grounds on which leave was granted by Mr Justice McKechnie.
He referred to the case law emphasising the need for clear statement of grounds for judicial review, and the limitation on applicants introducing new grounds afterwards.
While the question of double jeopardy was hinted at in letters from the solicitors for Dr Shine to the Medical Council, it was not raised in either the leave application or the full hearing before Mr Justice O'Donovan. Nor, he said, was any application made to amend the grounds on which the judicial review was sought.
"I am quite satisfied in any event that this is not a case which would permit the application of the principle of 'double jeopardy'," Mr Justice Kearns said.
"This is not a case of one criminal trial being followed by another. The proposed enquiry is being undertaken in a different context and for different purposes, including the protection of the public." He allowed the appeal of the Medical Council.
The full text of this judgment is on www.courts.ie
Esmonde Keane SC, Rory Mulcahy BL, instructed by McCann Fitzgerald, for the applicant;
Eoin McCullough SC, Patrick Leonard BL, for the Medical Council.