Complainant

Respondent

Anonymised Parties

A Complainant

Medical Council

Representatives

  Self - represented

Michelle Ní Longáin, Byrne Wallace Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00057003-001

26/05/2023

The complainant lodged a case of discrimination on grounds of disability against the respondent under the Equal Status Acts.

The complainant states that he made a complaint to the respondent in August 2021. He states that this complaint outlined a number of incidents where he states that a consultant psychiatrist behaved in a manner which was unprofessional whilst he was under her care from 2013 to 2016. The complainant states that he gave a detailed account of instances where the doctor’s adverse treatment of him resulted in a breach of patient human rights and in some instances his constitutional rights.

The complainant alleges that a bias developed in the respondent’s complaint investigation and recommendation process that favoured the word and reputation of a medical colleague and that this happened not only because of a bias towards mental health implicit or otherwise but also because of the make up of the Preliminary Proceedings Committee (PPC).

The complainant refers to previous comments made in 2006 by the then Minister for Health, Mary Harney wherein the Minister raised her concerns about the inequity she believed existed in the make up of the respondent organisation having regard to sectoral interest. The complainant asserts that Ms Harney said “Patients require assurances that their interests are paramount and override any sectoral interest. For this reason, I believe that any self-regulating professional organisation should have a majority of non-members on its governing board and I will propose this approach for the Medical Council”. The complainant states that Ms Harney promised the legislation would ensure robust governance, clarity of procedures and formal systems of accountability aimed at protecting the patient while also recognising the need for due process in allegations against health care professionals.

The complainant states that the make up of the first Preliminary Procedures Committee was as follows; 6 medical practitioners, 1 dentist, 1 retired solicitor, 1 psychologist, 1 patient advocate, 1 HSE employee.

The complainant states that the PCC met again on 30 June 2022 and this committee was made up as follows: 7 medical practitioners, 1 mental health practitioner, 1 operations manager from HSE, 1 solicitor, 1 patient advocate.

The complainant states that when the PCC met on 14 September 2022 to consider the evidence gathered and deliver its recommendation the make up of same was as follows; 7 doctors, 1 dentist, 1 solicitor, 2 hospital CEO’s, 1 HSE operation’s manager, 1 patient advocate.

The complainant states that in looking at the make up of the above Committees, one could hardly say that the equity Ms Harney aspired to was achieved in investigating his complaint as a member of the public or indeed as a person with a disability. The complainant asserts that at each meeting the majority of the committee members were medical practitioners and with the exception of the one patient advocate, the others were involved in the provision of healthcare or defending litigation against healthcare providers.

The complainant maintains that contrary to the provisions and spirit of the 2007 Medical Practitioner’s Act, there was absolutely no representation of patient advocacy groups or service users on the respondent organisation when it made its final decision on his complaint. The complainant contends that in regard to his interpretation of the 2007 Medical Practitioners Act, up to five persons on the respondent organisation may be either service users or patient advocates or a combination of both or may include one of those identified as the same. The complainant states that as people with disabilities including mental health disabilities are usually service users in this context, one would presume that at least one person with such a lived experience could be included amongst those five persons.            

The complainant states that the respondent failed in its duty of care to ensure that his complaint was investigated in a fair and equitable manner before considering the recommendation of the Preliminary Proceedings Committee and making their final decision. The complainant states that in the respondent’s annual report, it is stated that “The Council has a majority of non-medical members. The 25 Council consist of 13 non-medical members and 12 medical members….” The complainant asserts that if one considers the above statement and the respondent’s statutory role under the 2007 Medical Practitioners Act to protect members of the public (and the spirit of the Act which the then Minister for Health, Mary Harney was attempting to achieve); it is the complainant’s belief that the respondent failed to protect him as a member of the public by allowing a clear majority of medical practitioners to preside over the PPC committee which investigated his complaint and an overwhelming majority at the second PPC meeting which considered the evidence, made findings and a recommendation on his complaint. The complainant submits that by failing to identify this imbalance in their PPC committees, the respondent discounted the possibility that the complainant as a member of the public may not get a fair hearing and did not consider the possibility that his mental illness disability may have unconsciously biased the actions of at least some of their colleagues having regard to gathering all of the appropriate evidence and testimony. The complainant contends that the fact that there was no representation of any person on those committees that one might consider similar to himself (being on the committee because of a lived experience of being a service user/disability) also discriminated against him.

The complainant maintains that as a result of stigma, bias, implicit or otherwise, the Preliminary Procedure Committees investigation process was prejudicial towards him and his mental health disability and there was confirmation bias which favoured the testimony of the doctor named in the complaint. 

In summary, the complainant states that the respondent did not investigate his complaint properly. The complainant alleges that the doctor in question was informed of the outcome of the investigation long before he was advised of same. The complainant states that he has concerns in the manner in which the Medical Council is constituted and points to the lack of members of advocacy groups and service users with disabilities being represented on the Preliminary Proceedings Committee. The complainant states in this regard the respondent is in breach of EU law.

The respondent states that on foot of the complainant’s ES1 Form, a letter was issued to the complainant on 3 March 2023 addressing the questions raised by the complainant in his ES1 Form and confirming that there was no evidence of discrimination on the grounds of disability. The respondent states that on 26 May 2023, the complainant lodged his complaint form with the WRC under the 2000 Act alleging that he had been discriminated against by the respondent due to his disability and also provided his submission confirming this on 16 November 2023.  

The respondent raised a number of preliminary issues which it requests the WRC to hear as preliminary matters of law and which it states go to the critical question of the jurisdiction of the WRC in this matter.

It was submitted that the complaint against the respondent is misconceived and should be dismissed pursuant to section 22 of the Equal Status Act on the following grounds:

(i) In carrying out its decision making function in relation to complaints submitted to it in respect of medical practitioners under the 2007 Act, the respondent is not providing a “service” within the meaning of the Equal Status Act;

(ii) The concept of judicial immunity applies to the decision of the respondent in exercising quasi-judicial functions in the public interest; and

(iii) Without prejudice to the foregoing points (i) and (ii), in investigating a complaint and deciding how to proceed based on the findings of such investigation, as it is obliged to do pursuant to sections 59 and 61 of the Medical Practitioners Act 2007, section 14(1) of the Equal Status Act applies in defence of a claim that such actions constitute discrimination.

The respondent states that the above grounds were recently accepted by Judge Ni Chulachain in the Circuit Court in proceedings in respect of which the respondent was also a party, in grounding the Circuit Court’s decision to dismiss an appeal from the WRC under the Equal Status Act in Emma Barry v Dr Leena Naughton, Highfield Healthcare and the Medical Council [2023] IECC 8. The respondent states that it was held in that case that the respondent’s decision making function (in respect of complaints relating to medical practitioners) under Part 7 of the Medical Practitioners Act 2007 does not represent a “service” such as access to financial services; travel; cultural activities and recreational services within the meaning of the Equal Status Act. Judy Walsh in the Equal Status Acts 2000-2011, 2012 edition, Blackhall Publishing, at page 43 states: “Equivalent UK provisions have been subject to fairly extensive interpretation (McColgan, 2005, pp 255285; Monaghan, 2007, pp 505-508). In a number of cases UK courts concluded that ‘services’ were confined to acts of similar kind to acts that might be carried out by a private person. Therefore, functions that are of a public law nature (i.e. enforcement, regulatory and control functions) have fallen outside the scope of that country’s non-discrimination legislation.”

The respondent submits that services defined under section 2 of the Equal Status Act do not include functions that are of a public law nature such as the functions being exercised by the respondent under the 2007 Act.

It was submitted that in the matter of Olumide Smith -v- The Office of the Ombudsman, Justice Simons invited this argument (in respect of the Ombudsman Act 1980) by making the following comment:“It seems to have been assumed both before the Workplace Relations Commission and the Circuit Court that the carrying out of an investigation pursuant to the Ombudsman Act 1980 represents the provision of a “service” within the meaning of the Equal Status Act. The Office of the Ombudsman appeared to concede, at least for the purposes of the complaint that the carrying out of its functions are, in principle, subject to Part II of the Equal Status Act. In circumstances where no argument to the contrary has been advanced to the High Court on this appeal, it is unnecessary to address the correctness or otherwise of this assumption or concession. Nothing in this judgment should, however, be understood as necessarily endorsing the correctness of this approach. It is, however, an issue which may require to be determined in another case.”

The respondent states that the question of what represents a “service” within the meaning of the Equal Status Act has been considered by the WRC (formerly the Equality Appeals Tribunal) in a number of decisions. The Equality Officer in O’Neill v Garda Siochána Ombudsman Commission DEC-S2010-037, having established that she needed to examine the statutory functions of the respondent to determine whether all their functions can be regarded as a service of facility within the meaning of section 2(1) of the Equal Status Act, concluded as follows: “While I am satisfied that some of the services provided by the respondent to members of the public would come within the scope of the Act, the decision-making function is not a service as defined under Section 2 of the Equal Status Acts. There is a statutory duty on the respondent to investigate and make decisions including decisions about the admissibility of complaints in accordance with the Garda Síochána Act, 2005. It is a quasi-judicial decision-making function and is not amenable to review by this Tribunal.”

It was submitted that more recently, in A Complainant v A Service ADJ 35830, the complainant maintained that he had been discriminated against by, inter alia, a Court service. In considering, as a serious preliminary matter, whether the case was properly before the WRC in law, the Adjudication Officer stated as follows: “Accordingly, when examining complaints of this nature – regarding matters relating to Court proceedings – I note a much referenced and what I determine a leading commentary in relation to this issue, was eloquently addressed in Judy Walsh’s book, The Equal Status Acts 2000-2011, 2012 edition, Blackhall Publishing, at page 43 where she states: “Equivalent UK provisions have been subject to fairly extensive interpretation (McColgan, 2005, pp 255-285; Monaghan, 2007, pp 505-508). In a number of cases UK courts concluded that ‘services’ were confined to acts of similar kind to acts that might be carried out by a private person. Therefore, functions that are of a public law nature (i.e. enforcement, regulatory and control functions) have fallen outside the scope of that country’s non-discrimination legislation.”  

The case law supporting that contention is also emphatic. I note the decision in DEC-S2009 -087 Fogarty v Employment Appeals Tribunal where at paragraph 4.8 of the decision the Equality Officer found, “[T]hat the adjudication and decision making function of the respondent under the Unfair Dismissals Acts is not a "service" or "facility" which is available to the public. The respondent is exercising a quasi-judicial decision making function which is not subject to the terms of the Equal Status Acts. Therefore I find that any aspect of this complaint which refers to the decision making function of the respondent is misconceived.”

This to me is a significant finding and this supports the view that the complaint is not correctly before the Workplace Relations Commission for consideration under the Equal Status Act, 2000.”

The respondent submits that it was exercising a quasi-judicial role pursuant to its rights and obligations under the 2007 Act, and as such, the acts complained of do not come within the definition of a service under the Equal Status Act.

It was submitted that the respondent’s decision that no further action should be taken is a public function outside the definition of a ‘service’.

The respondent states that on 4 August 2021, the complainant, in accordance with section 57(1) of the 2007 Act, submitted a complaint to the respondent organisation concerning a medical practitioner.  The PPC – a committee established by the respondent pursuant to section 7(j) of the 2007 Act – investigated the complaint in accordance with Part 7 of the 2007 Act. It was submitted that, the respondent, having considered the opinion of its committee, the PPC, that there was not sufficient cause to warrant further action being taken in relation to the complaint, decided that no further action should be taken. This decision of the respondent was communicated to the complainant pursuant to section 61 of the 2007 Act. This was communicated to the complainant on 6 December 2021.

Section 7(1)(b) of the 2007 Act, makes it clear that the respondent must, when considering complaints against medical practitioners, act in the interests of the public: 7.— (1) The Council shall—… (b) perform its functions in the public interest.

The respondent states that its primary objective is to protect the public by promoting and better ensuring high standards of professional conduct and professional education, training and competence among registered medical practitioners. Regulating the relationship between registered medical practitioners and the public furthers this objective. However, this relationship does not exist solely for the benefit of the medical practitioners and their individual patients, but rather in the public interest that there should be proper regulation of medical care. The respondent submitted that in deciding how to proceed (based on the findings of an investigation into a complaint) in accordance with section 61(2) of the 2007 Act, it is exercising a statutory duty in the public interest. Accordingly, this public decision making function falls outside the definition of ‘service’ under the 2000 Act. 

The concept of judicial immunity applies to the decision of the respondent in exercising quasi judicial functions. It was submitted that the nexus of the relationship between the complainant and the respondent is based on the relevant statutory provisions that allow for the determination of the complaint made by the complainant. The decision of the respondent relates to quasi-judicial decision making as it derives from its statutory powers and functions under Part 7 of the 2007 Act.  Accordingly, the respondent submits, as held in respect of the same statutory body exercising the same functions in Emma Barry v Dr Leena Naughton, Highfield Healthcare and the Medical Council, that the principle of judicial immunity applies to the respondent exercising its quasi-judicial functions under the 2007 Act.

The respondent asserts that in Kemmy v Ireland the principle of judicial immunity and its purpose was addressed: “This freedom from action and question at the suit of an individual is given by the law to the judges, not so much for their own sake as for the sake of the public, and for the advancement of justice, that being free from actions, they may be free in thought and independent in judgment, as all who are to administer justice ought to be.”

It was submitted that the judgment of the Supreme Court in Beatty v The Rent Tribunal & Another is noted in respect of the present case, where the Court expressly considered whether statutory tribunals were entitled to enjoy immunity from suit and negligence similar to that provided to Judges. Mr. Justice Geoghegan’s majority judgment affirmed that the Rent Tribunal was immune from actions and negligence, where he said: “There is a single and simple reason why I believe that the appeal should be allowed and the claim for damages dismissed. Even though the Rent Tribunal (the appellant) is a tribunal which essentially determines rent disputes as between private parties it is a statutory body exercising statutory duties in the public interest. In these circumstances, I am quite satisfied that provided it is purporting to act bona fide within its jurisdiction it enjoys an immunity from an action in ordinary negligence.”

It was submitted that this case was considered by the WRC in A Complainant v the Residential Tenancies Board ADJ 26773. The WRC noted that the RTB was “fulfilling quasi-judicial decision making as set down in statute and those functions are covered by the principle of judicial immunity. The determination and the decision making function of that role is not a service or facility available to the public and do not constitute a service as defined under the Equal Status Act 2000 as amended.” As a result, the WRC held that the claim was misconceived based on the fact that the 2000 Act did not provide statutory authority to investigate the complaint, and that the WRC had no jurisdiction to investigate the complaint.

It was submitted that the Beatty case was also considered by the WRC in A Complainant v A Department ADJ 25568, which applied the concept of judicial immunity to a Government Department. The Adjudication Officer noted in respect of the Beatty decision that “the Supreme Court also determined absolute immunity on the basis of judicial immunity, for statutory adjudicative bodies was a matter for the legislature who created the body. Therefore, this indicates that prima facie statutory adjudicative bodies enjoy immunity from suit on the basis of the principle of judicial immunity unless there is an express provision countervailing against this in any statutory provision.” As judicial immunity applied to the Government Department, the WRC dismissed the complaint as misconceived. As a result, it is respectfully submitted that judicial immunity applies to the decision of the respondent in respect of the present dispute. 

The respondent states that in response to the matter of judicial immunity, the complainant notes in his letter dated 3 December 2023 as follows: “Under the 2007 Medical Practitioners Act, the only provision for immunity as it applies to the respondent organisation {my emphasis] or its committees is that no individual member can be subjected to a personal claim for any act done or default made in the performance or purported performance of any function under the Act. This includes all present and past members of the Council, PPC and CEOs.” 

The respondent submits that while sections 10 and 20 of the 2007 Act specifically provide immunity for certain members of the respondent, this does not detract from the immunity which the statutory body itself enjoys from suit when it is exercising its statutory quasi-judicial decision making function. It is respectfully submitted that the respondent is performing a public duty pursuant to its quasi-judicial powers under the 2007 Act, and as a result enjoys judicial immunity from suit when exercising that public function. 

The respondent states that the complainant also asserts in his letter dated 3 December 2023 that, apart from providing registration to medical practitioners, one of the main functions of the respondent is to protect the public and to ensure that they are in receipt of the highest standard of medical care. As a result, the complainant asserts that the respondent is the only body to which a member of the public can make a complaint about a medical practitioner's professional practice or conduct, and because of this, the respondent provides a statutory public service within the meaning of the 2000 Act.

The respondent maintains that as outlined within, it is the very fact that the respondent is exercising a public function derived from the 2007 Act which results in its exclusion from the definition of ‘service’ under the Equal Status Act. The respondent submits that it is also noteworthy that if the complainant had a concern regarding the lawfulness of the decision by the respondent, he could have proceeded to challenge the decision by way of judicial review proceedings to the High Court, and therefore would not have been without any legal remedy.

The respondent states without prejudice to the above arguments, section 14(1)(a)(ii) of the Equal Status Act provides an exemption for bodies acting under any enactment or order of a court. Section 14 of the 2000 Act reads as follows: 14—(1) Nothing in this Act shall be construed as prohibiting—

(a) the taking of any action that is required by or under—

(i) any enactment or order of a court,…

Sections 59(1), 61(1)(a) and 61(2) of the 2007 Act, read respectively as follows:

59.— (1) The Preliminary Proceedings Committee shall, as soon as is practicable after receiving a complaint, consider whether there is sufficient cause to warrant further action being taken in relation to the complaint.

61.— (1) Where the Preliminary Proceedings Committee is, in respect of a complaint, of the opinion that—

(a) there is not sufficient cause to warrant further action being taken in relation to the complaint…, …it shall inform the Council of that opinion…

…(2) The Council may, after considering an opinion referred to in subsection (1) in respect of a complaint—

(a) decide that no further action is to be taken in relation to the complaint.”

The respondent submits that it dealt with the complaint in accordance with the procedure set out in the 2007 Act. In doing so, it took an “…action that [was]…required by or under [an] enactment…” and cannot be prohibited from doing so by virtue of section 14(1) of the 2000 Act. It follows that the taking of such action cannot be considered discriminatory or a form of harassment.

It is the respondent’s position that the within complaint is not properly before the WRC as a matter of law on the following grounds:

(i)  The respondent is not providing a “service” within the meaning of the Equal Status Act; 

(ii) The concept of judicial immunity applies to the decision of the respondent in exercising quasi-judicial functions in the public interest; and without prejudice to the foregoing points (i) and (ii), pursuant to sections 59 and 61 of the 2007 Act, section 14(1) of the 2000 Act applies in defence of a claim that such actions constitute discrimination. As a result, the respondent respectfully submits that the complaint against the respondent is misconceived and should be dismissed pursuant to section 22 of the Equal Status Act.    

The Law

Section 2 of the Equal Status Act 2000, as amended, (the Act) defines a service as:

“service” means a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes—

(a) access to and the use of any place,

(b) facilities for—

(i) banking, insurance, grants, loans, credit or financing,

(ii) entertainment, recreation or refreshment,

(iii) cultural activities, or

(iv) transport or travel,

(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and

(d) a professional or trade service,

but does not include pension rights (within the meaning of the Employment Equality Act, 1998) or a service or facility in relation to which that Act applies;”

Disposal of goods and provision of services is dealt with by Section 5 and section 5(1) of the Act reads,

“(1) A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.”

Section 22 of the Act provides for the dismissal of complaints to the Workplace Relations Commission, at any stage in the proceedings, where such complaints are deemed to be frivolous, vexatious or misconceived:

“22. (1) The Director of the Workplace Relations Commission may dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.

(2) Not later than 42 days after the Director of the Workplace Relations Commission dismisses a claim under this section, the complainant may appeal against the decision to the Circuit Court on notice to the Director of the Workplace Relations Commission specifying the grounds of the appeal.

(3) On appeal the Court may affirm or quash the decision.

(4) No further appeal lies, other than an appeal to the High Court on a point of law.”

A preliminary issue was raised by the respondent, namely whether I have jurisdiction to hear this complaint on the basis that the respondent is not providing a “service” within the meaning of the Equal Status Act and the respondent is engaged in the administration of justice and is, therefore, immune from litigation. 

The immunity from litigation enjoyed by those engaged in the administration of justice is well established in Irish law.  In Kemmy v Ireland [2009] IEHC 178 the principle of judicial immunity and its purpose was addressed in the following manner:

“This freedom from action and question at the suit of an individual is given by the law to the judges, not so much for their own sake as for the sake of the public, and for the advancement of justice, that being free from actions, they may be free in thought and independent in judgment, as all who are to administer justice ought to be.”

I note the Supreme Court decision in Beatty v The Rent Tribunal & Another [2006] 2 IR 191 where the Court expressly considered whether statutory tribunals were entitled to enjoy immunity from suit and negligence similar to that enjoyed by judges. Mr. Justice Geoghegan’s majority judgment affirmed that the Rent Tribunal was immune from actions and negligence, where he said:

“even though the respondent is a Tribunal which essentially determines rent disputes as between private parties, it is a statutory body exercising statutory duties in the public interest. In the circumstances, I am quite satisfied that, provided it is purporting to act bona fide within its jurisdiction, it enjoys an immunity from an action in ordinary negligence.... In this respect it is in no different position from Court whether such Court be traditionally categorised as superior or inferior”.

I have carefully considered all of the evidence heard on the within preliminary matter. I note that the Circuit Court determined in the case of Emma Barry v Dr Leena Naughton, Highfield Healthcare and the Medical Council that the Medical Council has a statutory duty to investigate and make decisions under section 59 of the Medical Practitioners Act 2007. The Court found that this action is required by an enactment as provided for in section 14(1) of the 2000 Act and is therefore exempt from the definition of ‘service’ provided in section 2 of the 2000 Act.

I note that the Circuit Court held that the Medical Council was exercising a quasi-judicial decision-making function in conducting a statutory investigation and that performing its quasi-judicial decision making function does not come within the definition of “service” as provided in section 2 of the 2000 Act. I note that the same facts in respect of the functions being exercised by the respondent which applied before the WRC and the Circuit Court in Emma Barry v Dr Leena Naughton, Highfield Healthcare and the Medical Council apply to the present complaint.

Having carefully reviewed all of the evidence in the within matter, I am satisfied that the respondent, in exercising its PPC functions and in making decisions in relation to professional conduct, is exercising a function as a statutory adjudicative body which enjoys immunity from suit on the basis of the principle of judicial immunity. The decision making function of that role is not a service or facility available to the public and does not constitute a service as defined in section 2 of the Equal Status Act.  Accordingly, I am satisfied that I do not have jurisdiction to hear the case.  In all of the circumstances I find that the complaint is misconceived pursuant to Section 22 of the Equal Status Act, 2000 as amended and I dismiss this complaint.

I find that the within claim is misconceived pursuant to section 22. I dismiss the claim.

Equal Status Act, misconceived, no jurisdiction