ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00048448

Parties:

	Complainant	Respondent
Parties	Michael Sheill	Medical Council of Ireland

Representatives

Cliona Kimber S.C instructed by Byrne Wallace Solicitors

Complaint:

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000	CA-00057915-001	26/07/2023

Date of Adjudication Hearing: 21/01/2025

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 25 of the Equal Status Act, 2000, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The complainant was granted provisional registration as a medical practitioner on January 1st, 1986, and full registration on the register of medical practitioners established under the Medical Practitioners Act 1978. He remained on the Irish register until 1998 but has not been on it since then.

He says his registration application for inclusion on the medical register was considered by the respondent in an unlawful manner, in particular, that it discriminated against him on the grounds of his sexual orientation and/or disability.

He sent the ES1 Form to the respondent on March 16th, 2023, setting out these allegations, identifying January 16th 2023 as the date of the alleged breach. This was the date that the Review Panel considering his registration application issued its report, refusing his application for inclusion on the medical register.

A number of preliminary issues arise.

The respondent says that the complaints should be dismissed on the basis that the WRC does not have jurisdiction to hear it, that it is misconceived, including on the basis of section 22 of the Act of 2000.

It does so on the following grounds:

(i) The WRC does not have jurisdiction to hear the complaint where the same matters have already been determined by the High Court (subject to appeal to the Court of Appeal/Supreme Court) in light of the Supreme Court judgement in Munnelly v Margaret Hassett, Timothy Cremin and City Learning Limited [2023] IESC 29 considering both res judicata and the rule in rule in Henderson v. Henderson (1843) 3 Hare 100, 67 ER 313, which have the effect that matters that will by the time of the currently scheduled hearing have been heard by the High Court should not be heard again by the WRC.

(ii) The consideration and making of decisions of applications for registration in Ireland with the Medical Council are not services within the meaning of the Act of 2000.

(iii) The Respondent, in considering applications for registration in Ireland, was performing its functions as set out under Part 6 of the Act of 2007 and as a result, is entitled to avail of the exemption under section 14 of the Act of 2000.

These are dealt with further below.

Summary of Respondent’s Case on Preliminary Issue:

The complainant was first registered with the General Medical Council in the United Kingdom (the “GMC”) on 5 March 1987.

On August 14th, 2007, a Fitness to Practise Panel of the GMC directed that his name be erased from the Medical Register in the UK following widespread findings amounting to misconduct.

In the GMC’s Fitness to Practice Panel’s decision on sanction, it referred to his “persistent lack of insight,” harmful and deep-seated attitudinal problems” and “lack of insight in…dealing with others” before concluding as follows:

“The Panel regards your misconduct was fundamentally incompatible with continuing to be a registered medical practitioner. The Panel finds that the criteria in relation to erasure at pages 1-15 are applicable namely a serious departure from relevant professions standards as set in Good Medical Practice (2001), dishonesty and a persistent lack of insight into the seriousness of your actions and their consequences.

The panel considers that your behaviour is likely to undermine public confidence in the profession and bring the standing of the profession into disrepute. Therefore, the Panel has determined to direct that your name be erased from the Medical Register.”

The complainant appealed to the High Court of England and Wales. At no stage did he contend that that the Panel was wrong to find that his fitness to practise was impaired by reason of his misconduct. The appeal focused on the severity of the sanction imposed.

He was successful; however, the Court was satisfied that there was no ground for interfering with the sanction of erasure and he was erased from the register of registered medical practitioners in the UK on December 4th, 2008. He applied, on July 14th, 2017, to have his name restored to the Irish medical register.

As noted above, he had not been on the Irish Register after 1998.

In his application form, the complainant disclosed that he had previously been registered in the general division of the register and revealed that he had a conviction, that he suffers/ed from a relevant medical disability and that he had been the subject of disciplinary proceedings before the GMC resulting in his erasure for “(1) failure to register clinic (2) conduct”. He also disclosed that he had been convicted of dangerous driving in 2008 and sentenced to a period of twelve months’ imprisonment.

Despite the fact that he signed the declaration on the application form which includes at paragraph (j):

“I know of no reason why the Medical Council should not grant me registration in the Register of Medical Practitioners in accordance with the provisions of the Medical Practitioners Act 2007 as amended by the Health (Miscellaneous Provisions) Act 2007,”

he did not disclosecertain other material facts.

On September 28th, 2017, the Registration & Continuing Practise Committee in Ireland (“RCPC”) met to discuss and make recommendations on the application. It recommended that he not be registered. On being notified of the Recommendation, he notified the respondent on November 15th, 2017, that he wished to have it reviewed.

The Review Panel hearing took place over four days; January 24th, May 20th, July 15th, and November 24th, 2022, during which the complainant, (who chose not to give evidence and therefore was not available for cross-examination), was afforded the opportunity to make very lengthy and detailed submissions. This is the second stage of the respondent’s internal process.

The Review Panel reported on January 16th, 2023. This is the relevant decision (and date) for the purposes of this complaint to the WRC. It addressed the submissions made by the complainant and it is apparent from the Report that the Review Panel did not accept the complainant’s arguments and ultimately formed the view that he “lacked true insight into his decision.”

Following receipt of the Review Panel’s Report in January 2023, but prior to a hearing before the Council on April 19th, 2023, the complainant submitted his complaint to the WRC and also made a criminal complaint to An Garda Síochána against Counsel appearing for the respondent at the hearings of the Review Panel, alleging that he had made homophobic comments directed at him during the hearing.

His application for registration was considered by the Council on April 19th, 2023. During the meeting, he alleged that he was being discriminated against on the grounds of his sexual orientation. The complainant criticised the Report of the Review Panel as:

“Completely biased against me…it is not balance. There is no good or salient points, it is entirely negative…and that bias is because my claim against the Medical Council Great Britain that they harassed me and I was victimized because of my sexual orientation….”

The Council determined that “having carefully considered the report of the Review Panel [it] fully and unanimously agrees with the recommendation and is content to adopt same and the reasoning set out therein.” The Respondent refused his registration application.

In its Decision, the Council addressed certain matters raised by the complainant during his submissions and concluded with the following:

“Finally, Council wishes to state expressly that although Dr Sheill raised the issue of his sexuality on a number of occasions in the course of making submission on various issues, Council does not consider it to be of any relevance to the question of fitness. This is not a matter which Council would normally consider necessary nor appropriate to reference in a decision of this sort. However, given the fact that Dr Sheill has suggested that the decisions other regulatory bodies and decision makers have been improperly prejudiced against him by reasons of his sexuality Council considers it appropriate to explicitly state that this has not be the case in respect of this decision.”

He appealed the decision to the High Court.

One of his grounds of appeal was that he had been discriminated against and victimised on the grounds of his sexual orientation. It was heard over three days, and he argued that he has been discriminated against on grounds of sexual orientation and during which time he referenced the Act of 2000 as well as constitutional rights to equality and rights to equality under European and EU Human Rights legal instruments.

The appeal was unsuccessful, and Mr Justice O’Higgins delivered a detailed judgment on 31st October 2024 dismissing the appeal. O’Higgins J carefully considered at paragraphs 70 - 74 the ground of sexual discrimination raised by the Complainant in his appeal. The judgment states:

“70. The appellant submits that the Medical Council has discriminated against him on grounds of his sexual orientation. In my view, this is the low point of the appellant’s appeal. No evidence has been adduced by the appellant to justify this very serious allegation. The Review Panel delivered its report on the 16th of January 2023. Following receipt of the report, the appellant made complaints to the Workplace Relations Commission on the 2nd of February 2023. He alleged discrimination on grounds of sexual orientation, victimisation and bullying on the part of the Medical Council. He also saw fit to make a criminal complaint to An Garda Síochána against counsel who appeared on behalf of the CEO. He alleged that counsel had made homophobic comments directed at the appellant during the course of the Review Panel hearing.

71. In my view, neither allegation should have been made by the appellant. Individuals who give their time to act on behalf of public bodies and boards should not be subjected to wild and unfounded allegations unsupported by evidence. Having such a serious allegation made against a person can cause considerable stress and anxiety. It can also do serious harm to a person’s reputation. Serious allegations of this nature should not be made unless there isa clear and rational basis for them. The appellant appears to have concluded that, because he is homosexual, and because his application for registration was refused, those who made that decision are guilty of discriminating against him on grounds of sexual orientation. This sort of thinking is flawed, circular and illogical.

72. The appellant points to what he says are comparators in an effort to persuade the court that the respondent discriminated against him on the grounds of his sexual orientation. I agree with the respondent’s submission that the purported comparator cases relied upon by the appellant are readily distinguishable and of no relevance to the issues I have to decide in this appeal.

73. In justifying his complaints, the appellant points to his “perception” that the decision to refuse his application for registration was influenced by his sexual orientation. In my view, a litigant’s perception and sensitivities are important and should always be respected by a court. However, a litigant’s perception is no substitute for evidence or coherent argument. Perceptions cannot be tested or scrutinised in the way that evidence can. (Judgment and transcripts of the High Court proceedings submitted to the hearing).

The complainant has indicated an intention to appeal this decision to the Supreme Court and he is still within the timeframe to do so; it is understood that he plans to do so. As noted above, he submitted his ES1 Form on 16 March 2023 and his WRC complaint on July 26th, 2023.

He appeared to have submitted a further complaint form, received by the WRC on October 24th, 2023, clarifying that the complaint was under the Act of 2000 and stated the first incident of discrimination occurred on October 12th, 2017, and the most recent date of discrimination was May 31st, 2023. The complaint form also stated that the ES1 form was sent to the respondent on March 16th, 2023.

APPLICATION TO DISMISS FOR ABSENCE OF JURISDICTION

The complaint should be dismissed as the WRC does not have jurisdiction over the matters complained of, and the complaint is misconceived, including on the basis of section 22 of the Act of 2000.

This submission is made on the following grounds:

(i) The WRC does not have jurisdiction to hear the complaint where the same matters have already been determined by the High Court (subject to appeal to the Court of Appeal/Supreme Court) in light of the Supreme Court judgement in Munnelly v Margaret Hassett, Timothy Cremin and City Learning Limited [2023] IESC 29 considering both res judicata and the rule in rule in Henderson v. Henderson (1843) 3 Hare 100, 67 ER 313, which have the effect that matters that will by the time of the currently scheduled hearing have been heard by the High Court should not be heard by the WRC.

(ii) The consideration and making of decisions of applications for registration in Ireland with the Medical Council are not services within the meaning of the Act of 2000.

Even if this application was rejected, no hearing could proceed as the complaint form was lodged outside the six-month statutory time limit prescribed under section 21(6) of the Act of 2000 and in the absence of reasonable cause to extend the prescribed timeframe for lodging his complaint.

Given that the complainant had appealed to the High Court in respect of the same matters, he could not have reasonable cause for not lodging the complaint form within the six-month statutory time limit.

GROUND 1- THE COMPLAINT HAS BEEN DETERMINED BY THE HIGH COURT

The WRC does not have jurisdiction to hear the complaint where the same matters have already been determined by the High Court (subject to appeal to the Court of Appeal/Supreme Court).

In Munnelly v Margaret Hassett, Timothy Cremin and City Learning Limited [2023] IESC 29 considering both res judicata and the rule in rule in Henderson v. Henderson (1843) 3 Hare 100, 67 ER 313, which have the effect that matters have been raised, heard and determined in one set of proceedings, cannot be raised again in subsequent proceedings.

In the present case, the issue of discrimination, and indeed breach of the Act of 2000 was raised and determined by the High Court. No objection was taken in the High Court to arguments being made in relation to discrimination or the Act of 2000.

The matter already having been determined, it cannot be raised again in subsequent proceedings either by the WRC, or otherwise.

In so far as the complainant did not raise the issue of discrimination on grounds of disability before the High Court, only raising the issue of discrimination on grounds of sexual orientation, the failure to do so cannot be rectified by raising this claim in subsequent proceedings.

Henderson v Henderson requires a litigation to bring their whole case to Court and provides that if a matter could have been raised, it should have been raised, and a failure to do so does not allow it to be raised again in separate proceedings. The Supreme Court ruled in Munnelly:

“If indeed, this is a separate and distinct claim as the plaintiff asserted, then it would appear to be a classic example of the principle in Henderson v. Henderson, since plainly it could have been advanced in the 2016 proceedings and should have been.” [At paragraph 36]

The claims of victimisation/discrimination in his appeal before the High Court represent a duplication of the complaint to the WRC. The reality of the situation is that he is trying to obtain relief under the Act of 2000 for the same alleged acts as those before the High Court.

The Supreme Court was also clear that the rules should be applied in the same manner even where a litigant is self-represented, especially where a subsequent hearing raising the same issues would put a defendant ‘to the cost and inconvenience of defending a further set of proceedings, arising from essentially the same facts and circumstances. [at para 42]. It noted that where litigants are self-represented, the rule in fact applies especially,

“It is often regrettably the case that parties who are unrepresented will seek to revisit old disputes or seek to advance new grounds in an attempt to avoid the consequences of a past failure. That is precisely the conduct which the allied rules of res judicata and the principle in Henderson v. Henderson, are designed to guard against,” [para 41]

It is noted that the complainant has referred to allegations of discrimination/victimisation on the basis of sexual orientation, throughout the course of the High Court proceedings, which are presented in the present complaint. This was also ruled on by Justice O’Higgins in his judgment on October 31st, 2024.

In particular, the judgment noted the complainant made the same arguments of discrimination as he appears to assert in his complaint form (notwithstanding the lack of any clear basis for making the assertions). For example, the judgment states:

1.1 “The appellant referenced the right to the protection of personal data under Article 8 ECHR. In that regard, he complains that the Medical Council’s information was obtained from the GMC, which was itself based on information obtained in breach of Article 8.

1.2 The appellant says that it is his perception that heterosexual doctors would not have been abused in this manner in similar proceedings before the Medical Council, and that this difference in treatment is legally inadmissible.”

1.3 The appellant says there were important differences in treatment between the way in which his case was dealt with and that of another litigant, who is a heterosexual male. He argues that his application to be reinstated on to the medical register was rejected on the basis of a determination that he was unfit to practice…In all these circumstances, it is the appellant’s perception that the Medical Council demonstrated unconscious bias because of his sexual orientation and having a disability.”

These complaints are addressed at paragraphs 70-74 of the judgment, having considered the arguments raised by the complainant on this point. Justice O’Higgins concludes that:

“No evidence has been adduced by the appellant to justify this very serious allegation [of discrimination based on sexual orientation] …The appellant appears to have concluded that, because he is homosexual, and because his application for registration was refused, those who made that decision are guilty of discriminating against him on grounds of sexual orientation. This sort of thinking is flawed, circular and illogical…These allegations are without substance and should not have been made.”

In respect of the res judicata rule, the issues sought to be investigated by him in the within proceedings are the same as those previously referred by him to the High Court under the Act of 2007. On this basis, he is estopped from pursuing the complaints by reason of the doctrine of res judicata.

The criteria required to successfully invoke this doctrine were considered by the High Court in Sweeney v Bus Átha Cliath/Dublin Bus and Others [2004] 1 IR 576 as follows.

“In this case, the kind of res judicata that we are concerned with is "issue estoppel". The ingredients necessary to invoke the doctrine of res judicata, on this ground, were summarised in the following passage from the judgment of Keane J., as he then was, in the case of McCauley v. McDermot [1997] 2 I.L.R.M. 486 at p. 492, as follows: -

"While the doctrine of what has come to be called 'issue estoppel' has been the subject of explanation and analysis in many modern decisions, its essential features were helpfully summarized as follows by Lord Guest in Carl Zeiss Stiftung v. Rayner and Keeler Limited [1967] 1 A.C. 853 at p. 935A:

'The requirements of issue estoppel still remain

(1) that the same question has been decided.

(2) that the judicial decision which is said create the estoppel was final; and

(3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies'."

The above test was approved by the Supreme Court, on appeal. As noted in Mullaney a court had no discretion as regards strict res judicata where an issue had been decided by a court of competent jurisdiction in proceedings between the same or connected parties. No new proceedings could be brought except in the limited circumstances where the original order can be set aside on the grounds of fraud or other similar serious wrongdoing.

Applying the above to this complaint.

a) The complainant’s challenge under the Act of 2000 has already been investigated and decided upon by the High Court.

b) The resulting judgment is final and binding; and

c) The parties to the within complaint are exactly the same as those to the High Court proceedings.

These proceedings offend against the rule in in Henderson v Henderson (1843) 3 Hare 100 (as considered by the Irish Supreme Court in A.A. v The Medical Council [2003] 4 IR 302.

The rule in Henderson v Henderson requires parties, when a matter becomes the subject of litigation, to bring their whole case before the court so that all aspects of it may be finally decided once and for all. It provides that, in the absence of special circumstances, the parties cannot return to the court to advance arguments, claims or defences, which they could have put forward for decision on the first occasion but failed to raise.

The rule is one of public policy, based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on forever and that a defendant should not be oppressed by successive suits when one would suffice.

In summary by reference to the authorities outlined above, the complainant is estopped from seeking to have his claim under the Act of 2000 re-investigated in the within proceedings.

The respondent’s decision-making functions and statutory powers as set out in the Act of 2007 are subject to judicial oversight and a decision is subject to appeal to the High Court. The Complainant availed of his right to appeal the Medical Council’s decision. The Act of 2000 does not provide an alternative route to address concerns relating to how the respondent performsitsfunctions.

This point was noted by the adjudication officer in Complainant v Residential Tenancies Board, ADJ-00026773 noting how the Tenancy Tribunal fulfils its role is subject to judicial scrutiny. This means that complainant could have referred his grievance concerning how fairly and impartially that role is conducted to the High Court and did so. As a result, the adjudication officer found that it was not appropriate for the WRC to consider the complaint.

If the complainant is attempting to raise new arguments, not previously ventilated before the WRC, the rule in Henderson v Henderson precludes the Adjudicator from hearing those arguments

GROUND 2- THE COMPLAINT DOES NOT RELATE TO THE PROVISION OF A SERVICE

The respondent is an independent statutory body established pursuant to section 6 of the Medical Practitioners Act 1978 (as amended) and continued in being by way of section 4 of the Act of 2007.

Its public statutory functions do not come within the definition of a service under section 2 of the Act of 2000, and as a result, the WRC does not have jurisdiction to consider this dispute. Section 2 of the Act of 2000 defines a service as follows.

“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.”

The respondent’s decision-making function relating to the registration of medical practitioners under Part 6 of the Act of 2007 does not represent a “service” such as access to financial services; travel; cultural activities and recreational services, within the meaning of the Act of 2000. In respect of this complaint, the exercise of the following provisions under the Act of 2007 when considering the Complainant’s application to register as a medical practitioner:

The respondent's objective is set out at section 6 of the Act of 2007, which provides that "the object of the Council is to protect the public by promoting and better ensuring high standards of professional conduct and professional education, training and competence among registered practitioners".

Its principal functions are set out at section 7 of the 2007 Act and include at section 7(1)(a) "to do all things necessary and reasonable to further its object".

Section 43(1) of the 2007 Act imposed an obligation on the Respondent to establish and maintain a register to be known as the register of medical practitioners.

Section 45(1) is the provision which allows a medical practitioner to make an application, accompanied by the appropriate fee, to the Respondent to be registered. Section 54(1) of the 2007 Act provides: "Nothing in sections 45 to 53 shall operate to prevent the Council from refusing to register or restore the registration of a medical practitioner on the grounds of unfitness of the practitioner to practise medicine."

Section 54(2) of the Act of 2007 provides, inter alia, that where the Respondent decides to refuse to register or restore the registration of a medical practitioner to the register, the Respondent shall forthwith give notice in writing to the practitioner of the decision, the date of the decision and the reasons for the decision.

Section 54(3) of the Act of 2007 provides that a medical practitioner the subject of a decision referred to in section 54(2) may, not later than 3 months after the date on which the practitioner was given notice of the decision pursuant to that subsection, appeal to the High Court.

Section 54(4) of the Act of 2007 provides for the jurisdiction of the High Court on appeal and Section 54(5) of the Act of 2007 provides that the Respondent shall, on complying with a direction given by the High Court under section 54(4), give notice in writing to the medical practitioner concerned of the Respondent's compliance with the direction.

Each of the above provisions is relevant to the present complaint and were being exercised in respect of his registration application. In deciding how to proceed (based on its determination not to register the complainant as a medical practitioner) in accordance with the above provisions of the Act of 2007, it was exercising a statutory duty in the public interest. Accordingly, this public decision-making function falls outside the definition of ‘service’ under the Act of Act.

The scope of what is meant by a service is clear from expert commentary and case law.

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 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 question of what represents a “service” within the meaning of the Act of 2000 has been considered by the WRC and its predecessor body, the Equality Appeals Tribunal, in a number of decisions and was considered in several cases before the WRC against the Respondent under the Act of 2000, which examined the exercise of the Respondent’s statutory functions under the Act of 2007.

In the most recent and similar decision of the WRC in Rajesh Rajoria v The Irish Medical Council, ADJ-00049707, CA-00060800, the WRC determined it did not have jurisdiction to hear the complaint under the Act of 2000 as the consideration and making of decisions in respect of registration applications with the Medical Council were not services within the meaning of the Act of 2000.

In making this decision, the Adjudication Officer noted the function exercised by the Medical Council involves a statutory regulatory function, which was being discharged for the benefit of all, the regulation of medical practitioners and the practice of medicine and is not a service of the type defined in the legislation.

This case also noted previous decisions on the definition of “service” under section 2 of the Act of 2000, including Donovan v Garda Donnellan DEC-S2001-011 which was the first decision under the Act of 2000 to consider the meaning of “service” in the context of state activities It held that controlling duties exercised by An Garda Síochána do not come within the meaning of a service, in this case the investigation and prosecution of a crime.

The decision of the Equality Tribunal in Donovan was subsequently applied in A Complainant v An Garda Síochána DEC-S2005/037. The same rationale was also noted in Tomasz Pysz v the Department of Health ADJ-00036360.

We refer to the same authorities outlined in that decision when considering this complaint as the same rationale applies to the present complaint against the Medical Council, as applied in respect of the cases against An Garda Síochána and the Department of Health. That is, that the function exercised by the Medical Council in making a decision in relation to the registration of medical practitioners is not a service within the definition of the Act of 2000, as it relates to a State regulatory function that is being discharged for the benefit of all. It is also in the nature of a controlling and decision-making function, ensuring that only properly qualified and fit and proper medical practitioners can be registered in the State.

The services defined under section 2 of the Act of 2000 do not include functions that are of a public law nature such as the functions being exercised by the Respondent under the Act of 2007.

Accordingly, this public decision-making function falls outside the definition of ‘service’ under the Act of 2000.

GROUND 3- THE RESPONDENT WAS TAKING AN ACTION REQUIRED UNDER AN ENACTMENT PURSUANT TO SECTION 14 OF THE ACT OF 2000

The complaint is misconceived within the meaning of section 22 of the Act of 2000 under Ground 2. There is an automatic exemption in section 14 for actions required under an enactment. Section 14(1)(a)(ii) of the Act of 2000 provides an exemption for bodies acting under any enactment or order of a court. Section 14 of the Act of 2000 provides 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,…”

As outlined by the Equality Officer in the case of O’Donoghue v Clare County Council (DEC-S2018-002) matters falling within the scope of this section of the Act of 2000 are “exempt from investigation by the Commission”.

Accordingly, section 14(1) of the Act of 2000 provides a complete bar to any allegation that the Respondent’s registration requirements are discriminatory, as the requirement to consider a registration application arises under statute i.e. an “enactment” in accordance with section 14(1) and is, as such, exempt from the application of the Act of 2000.

Section 6 of the Act of 2007 confirms the object of the Council 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.”

Section 7(1)(b) of the Act of 2007, makes it clear that the Respondent must, when considering the registration of medical practitioners, act in the interests of the public:

The object of the Medical Council 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 object. 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. Throughout the course of the correspondence between the parties, the Respondent has consistently acted pursuant to its statutory powers in the interests of the public.

In deciding whether a medical practitioner is registered with Medical Council in accordance with Part 6 of the Act of 2007, the Respondent is exercising a statutory regulatory duty in the public interest. The making of decisions as to what persons and in what circumstances a person can be registered in the State is an action taken in accordance with the Act of 2007.

This was also accepted in the above case against the Respondent in Rajesh Rajoria v The Irish Medical Council, ADJ-00049707.

In that case, the Respondent relied on section 14(1)(a)(ii) of the Act of 2000 which provides an exemption for bodies acting under any enactment or order of a court.

The Adjudication Officer stated that he saw no basis for taking a different view on the extensive and consistent authorities submitted by the Respondent, which provide ample reasons to conclude that he did not have jurisdiction to consider the complaint as it is not a matter envisaged as being covered by the statute.

It should also be noted that the arguments raised in the case referred to, were also upheld by the Circuit Court, the appellate body to the WRC in the present complaint under the Act of 2000, in Emma Barry v Dr Leena Naughton, Highfield Healthcare and the Medical Council [2023] IECC 8 which considered an appeal from the WRC under the Act of 2000.

In that case, the Medical Council was acting pursuant to its disciplinary functions under section 59 of the Act of 2007. Justice Ní Chúlacháin determined that the Medical Council had a statutory duty to investigate and make decisions under section 59 of the Act of 2007, and that this constituted the taking of an action required by an enactment as provided for in section 14(1) of the Act of 2000 and was therefore, exempt from the definition of ‘service’ provided in section 2 of the Act of 2000.

By analogy, it is respectfully submitted that the registration obligations of the Medical Council pursuant to Part 6 of the Act of 2007 do not come within the definition of a service under section 2 of the Act of 2000 and constitute the taking of an action required by an enactment as required under section 14(1) of the Act of 2000, which is exempt from the Act of 2000.

ABSENCE OF JURISDICTION DUE TO FAILURE TO SUBMIT COMPLAINT IN WITHIN TIME

Even if this application were rejected, no hearing could proceed as the complaint form was lodged outside the six-month statutory time limit prescribed under section 21(6) of the Act of 2000 without reasonable cause.

Section 21(6) of the Act of 2000 states:

(6) (a) “Subject to subsections (3)(a)(ii) and (7), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the F42[Director of the Workplace Relations Commission] F43[or, as the case may be, the Circuit Court] may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.”

The ES1 form was sent on March 16th, 2023, in respect of alleged prohibited conduct that occurred on 16 January 2023, namely the decision of the RCPC to refuse to place him on the Register. The complaint form was lodged with the WRC on July 26th, 2023, over six months after the alleged prohibited conduct.

As the incorrect complaint form was lodged, the complainant submitted a further complaint form on 24 October 2023.

It is settled law that where a statute sets out strict time limits for the referral of complaints to the WRC and Labour Court seeking redress for discriminatory treatment that these limits are of relevance to the jurisdiction of the WRC. This is because they are statutory bodies with specific restrictions to jurisdiction under the Act of 2000 which they cannot exceed. Minister for Trade and Enterprise v Reilly DWT 2418. (Labour Court, 24 May 2024). It is submitted that the jurisdiction of the WRC is confined to a period of six months prior to the date on which the claim was received by the WRC.

The decisions of the Review Panel and of the Medical Council, being in the nature of appeals, do not stop time for the purposes of the Act of 2000. In Employment Equality complaints, the Labour Court has consistently ruled that utilisation of an employer’s internal grievance procedures does not amount to reasonable cause for delaying referral of a complaint. Pfizer Pharmaceuticals Ireland v Whelan EDA 24/2019.

As a result, the complainant has failed to lodge his complaint within the statutory timeframe prescribed by the Act of 2000 and has failed to provide reasonable cause for complying with this timeframe in order to seek to extend the deadline by a further 6 months, contrary to the Act of 2000. In circumstances where he had appealed to the High Court in respect of the same mattes, he could not have reasonable cause for not lodging the complaint from within the six-month statutory time limit.

Having regard to the fact that this complaint is misconceived for the reasons set out in sections within, we respectfully submit that this application needs be considered as a priority. If it is determined that the Act of 2000 applies, we propose a further hearing is convened to consider other jurisdictional matters and the merits of the substantive arguments raised by the Complainant in his complaint form.

In conclusion, the Respondent submits that the WRC does not have jurisdiction to consider this complaint on the following basis:

(i) The complaint is out of time.

(ii) The matters complained of have already been considered by the High Court, pursuant to a separate statutory appeal process.

(iii) The matter complained of does not come within the scope of the Act of 2000 because the consideration and making of decisions of applications for registration in Ireland with the Medical Council are not services within the meaning of the Act of 2000.

(iv) The Respondent Medical Council, in considering applications for registration in Ireland, was performing its functions as set out under Part 6 of the Act of 2007 and as a result, is exempt under section 14 of the Act of 2000 from any complaint arising out of the Act of 2000.

The respondent also applies for dismissal on the basis of section 22 of the Act of 2000, as for the reasons set out above, the complaint is misconceived and does not disclose any cause of action within the scope of the Act of 2000.

The language in section 22 of the Act of 2000 provides for the dismissal of a claim “at any stage”. In making a determination in respect of the Grounds outlined within, the WRC is not required to consider the substantive complaints raised nor would it be appropriate to do so given the absence of jurisdiction.

Summary of Complainant’s Case on Preliminary Issue:

The complainant made a number of submissions since the case was first referred to the WRC. Approaching the hearing he submitted a chronological narrative of events on January 21st and an initial response to the respondent‘s application to have the case dismissed for want of jurisdiction.

The chronological narrative of the background to his case was received by the Adjudicator only on the morning of the hearing, and specifically addressing the respondent’s submission to have the matter dismissed for want of jurisdiction (January 18th).

Following the hearing he was invited to and did make further submissions including a copy of a judgement of the CJEU and a further submission along the lines of that made on January 20th. What follows is an edited version of the submission of January 18th, the complainant‘s sworn evidence and a relevant extract from his later submission on February 2nd, 2025.

The complainant says that under the Act any discrimination in employment and occupation as defined in directive 2000/78/EC employment and occupation goes to a court established under European law, in this case the WRC.

That WRC powers are under European law, treaties and directives transposed into Irish law Article 12 & article 13 of treaty of Amsterdam, gave effect to European law directive 2000/78/EC.

Article 13 prohibits discrimination based on sex, race, ethnicity, religion, belief, disability, age and sexual orientation. This was the first time the treaties explicitly referenced discrimination based on grounds other than nationality or sex and. gives European institutions the power to act against discrimination. It allows the European council to adopt rules to prohibit discrimination

Following the Directive, the Equal Status Act 2000 in 2004 to comply with European law, The Treaty of Amsterdam and directive 2000/78/EC was transposed into Irish law. The Lisbon Treaty was signed by both UK and Irish governments so that, Article 19 conferred the same rights as the article 13 of Amsterdam treaty THAT the constitution was changed to give effect to the supremacy of European Law over national law.

Article 29.4.6 of Bunreacht na hÉireann gives precedent over the Irish constitution when there is a conflict between Irish law and European law, section 54 of the medical act 2007 and Article 29 section 4 subsection 6.

This means that European Union law has the force of law, and the constitution cannot invalidate European Union laws, and the constitution cannot invalidate laws enacted by the state that are necessary for the European Union membership. Article 6 of the treaty of Lisbon gives constitutional protections under Irish law the charter of fundamental rights of European Union, the basic law of union.

Unlike the constitution where rights to livelihood, to good name are derived by interpretation by Supreme Court by reference to the constitution, the charter gives explicit rights to European citizens.

The right in question that the complainant appealed to the WRC was the right to an occupation: Article 15(1) right to work 15(2) chosen profession medicine that is a fundamental right,

Any interference with that right based on less favourable treatment (sexual orientation and disability), article 20 & article 21 of the charter was to a court or tribunal that satisfied the following criteria under article 47 of the charter was a tribunal that afforded him an effective remedy , a fair and public hearing , within a reasonable time , to a Tribunal or court previously established by law and the rights of defence article 48, and right not to Tried for an offence that did not exist in national or international law, at time of the commission.

Of that offence 49(1) of the charter prohibits retrospective crimes and punishments which means that someone cannot be punished for an offence that was not an offence at the time it was committed 49(3) of the charter The severity of penalties must not be disproportioned to the criminal offence. (The doctor was found guilty of a criminal offence that does not exist in Irish national law and given a lifetime ban, which is a disproportionate sentence.

The principle of proportionality 52(1) of the charter fundamental principle of European union That failure of the of tribunal inquiry failed to apply proportionality test and that the decision of inquiry of 2022to 2023 delivered on 16/01/2023 was not in public and fair procedures had not been applied.

That enquiry under 54CFR of the Act as this tribunal was biased and that by denying a doctor his right to renew his registration, which satisfied all the legal requirements to be granted, renew his registration. That decision of the panel was arbitrary and capricious and biased.

That his perception was that was based on disability which Doctor made aware to the health committee in July 2017, report of his consultant psychiatrist that he was well and being supported.

That following that report there was no further interaction with that panel who though aware of defined disability and the medical council. Never had considered contacting his GP or his consultant psychiatrist, that this is example of indirect discrimination by that panel and under Equal status act, public authorities such as the Medical Council are required make reasonable accommodation for people with disabilities which medical council failed to do.

His perception was that because of his defined disability that the Medical Council was to frustrate and delay in the expectation that I would as vulnerable characteristics collapse mentally.

The (GMC) hearings and investigations started in 2007. Eighteen years is unreasonable time to treat and harass and victimise a doctor Because of his protected characteristics disability and sexual orientation, a denial of justice.

The difference in treatment by lack of public hearing and fair process were examples of victimisation, harassment and discrimination. That decision of the GMC delivered on May 31st, 2023, failed to deal with the complaints by proper use of the comparator test to review the difference in treatment (and various comparators were named).

As to what constitutes discrimination there no prima facie evidence as to the requirement of what evidence constitutes prima facie the answer is there no procedural barriers even statistics Can be relied upon

That Dr Sheill charged with criminal offences, not convicted in a court of first instance Found guilty of time barred statutory criminal offence 1980.

(Adjudicator Note; The complainant’s submission continues with other historical detail about the GMC management of that case which is not relevant for this complaint).

The decision of the High Court of Ireland fails to address this crucial issue given in open court and was unsafe and is subject to appeal to Supreme Court. None of hearings before the Medical Council of Ireland were held in public nor was evidence Sworn on oath.

ROLEOFWRC

The appellant presents the following submission concerning the jurisdiction of the WRC the Workplace Relation Commission to adjudicate claims under article 19 of the treaty of Lisbon and directive 2000/70 8EC in light of the supremacy of European law union law as enshrined in article 29.4.6 of the Irish constitution

The WRC has the authority to hear and determine complaints alleging discrimination in employment and occupation, notwithstanding any prior judgements of the High Court, pursuant to the principles established by the court of justice of the European Union and the Irish constitution

Article 29.4.6 of the Bunreacht na hÉireann enshrines the supremacy of European Union law within the domestic legal system, ensuring that no provision of the constitution invalidate laws or measures necessitated by Ireland’s membership of the European Union.

In the Minister of Justice and Equality and the Garda commissioner v the WRC case C-378 /2017 the CJEU the court of justice of the European union affirmed that the national bodies including the WRC are obligated to disapply any national legislation that conflicts with European Union law

The duty of the state is to uphold European. Law extends to ensuring effective remedies for breaches of European Union law such as article 19 of the treaty of Lisbon., Which prohibits any discrimination on sexual orientation or disability, including those arising under directive 2000/70 8EC which prohibits discrimination on the grounds of protective characteristics as disability and sexual orientation.

Furthermore, article 20 and 21 CFR both demand equality and non-discrimination any discrimination based on nationality or sexual orientation, or disability is prohibited by law of the European Union.

Thus in this case where the a right to work article 15 (1) article 15 (2) chosen profession and any interference with that right based on discrimination on nationality or sexual orientation & disability is prohibited by law of the union with any interference with that right to work anywhere in European Union including Ireland is prohibited by law , that such a fundamental right being abused by medical council such as Lack of public hearing and lack of procedural safeguards is to a tribunal court under European law Is to WRC ,a special tribunal set up by Irish government to uphold these rights under treaty of Lisbon As enshrined in the Irish constitution

The Duty of the state is to uphold European law extends to ensuring effective remedies for beaches of EU law, including those arising from the treaties and the directives which prohibits grounds such as disability and sexual orientation, right to access to a court the satisfies the conditions lay down an article 47 of the charter of fundamental rights

DIRECTIVE 2000/78/EC. AND RIGHT TO NON DISCRIMINATION

Directive 2000/70 8EC requires member states to provide mechanisms for individuals to challenge discriminatory actions and obtain redress. Article 9 of the directive mandates that such mechanisms be effective and accessible

Blocking the WRC jurisdiction in this matter would breach the principle of non-discrimination enshrined in directive 2000/70 8EC and undermines Ireland’s obligations on the European Union law

Preventing the WRC from adjudicating claims under the directive 2000/70 8EC would constitute a breach of article 29.4.6 of the constitution by failing to uphold Ireland obligations as a member state of the European Union, would be unconstitutional.

Such a denial would also contravene the principles established by the court of justice of European Union in the case of Minister for justice and equality v the Workplace Relation Commission Case C- 378/17 CJEU. T.P. V polish television case c-356/2021 press release 12 January 2023 Luxembourg Occupation as self-employed contractor, new definition of self-employed.

Both of these cases require national bodies to disapply conflicting national provisions to uphold European Union law, such as hearings held under section 54 of the medical act 2007.

Article 47 of the charter of fundamental rights of the European Union guarantees the right to an effective remedy and fair hearing. Under article 51(1) of the charter of fundamental rights, this right is binding on all member states of the European union.

That the decision of the medical council in 2017 ,2022 and 2023 violated this fundamental right, right to fair hearing, as defined in article 47 it provides for a fair and public hearing within reasonable time, by tribunal previously established by law, that remedy must be an effective remedy under article 54 of the charter of fundamental rights.

There was an abuse of fundamental right the right to fair hearing., that it was not heard in public and fair procedures were not followed, that 18 years is unreasonable time from August 2007 to 2025, it is a catastrophic denial of justice.

And tribunal was not previously established by law.

That any hearing based on discrimination, sexual orientation and disability would not satisfy the principles of proportionality and would be disproportionate, abuse of fundamental right, that of equality and nondiscrimination and under European law unlawful and under 29.4.6 of the constitution and therefore unconstitutional.

Denying the appellant access to the WRC to seek redress would under article 19 of the treaty of Lisbon and directive 2000/78/EC would violate this right, as interpreted by CJEU in the case TP v Polish television c- 356/2021

in light of the supremacy of the European Union in law the obligations imposed by article 19 of the treaty of Lisbon, by directive 2000/78/EC and the charter of fundamental rights of the European Union article 20 and 21 and the fundamental right under article 47 to an effective remedy it is submitted that the WRC possesses the jurisdiction to adjudicate on the present matter.

The appellant says that the WRC has the authority to hear and determine complaints under Article 19 of the treaty of Lisbon, under directive of 2000/78/EC not withstanding any prior high court judgements affirming That national bodies must disapply national legislation or judgements that conflict with European law in accordance with the principles established by the court of justice of the European Union

That the application blocking the WRC jurisdiction constitutes a breach of article 29.4.6 of the Irish constitution and European law that would be unconstitutional and unlawful under European law.

Oral Evidence at the Hearing

In his oral evidence at the hearing, which was given on oath, the complainant responded to the time limits issue by saying that he understood that the six months to submit his complaint ran from the date of the submission of the ES 1 Form.

In general, (as outlined above) he relied heavily on the fact of the WRC being established under EU law which, in the Charter of Fundamental Rights proscribes ‘any discrimination’ and even had a duty to disallow any domestic legislation which had the effect of doing so.

The effect of the alleged discriminatory actions by the respondent had resulted in him not being able to work (and he referred to the Polish case cited above).

In his view the Medical Council does provide professional services of the type envisaged by the Act.

Post Hearing submissions.

The complainant submitted a report of the judgement in JK v TPS.A, C-378/17 CJEU on January 28th, after the hearing.

(He also, as he was invited to do, made further submissions which, almost entirely replicate the foregoing.)

However, he did address the issue as to whether the respondent’s activities are covered by the Equal Status Acts as follows.

The complaint does not relate to the provision of a service.

SECTION 2 of the equal status act 2000 Define a service or a facility of any nature which is available to the public or a section of the public and without prejudice to the generality of the foregoing includes section (d), a professional or trade service.

The Medical Council provides a professional service to a section of the public, in this instance medical profession, a section of the public and that service is access to an occupation a profession to provide professional services to the public.

On being granted access to a profession, a doctor then provides a professional service and pays a license to provide to provide professional service. Those other services are to take complaints from the public regarding professional services that medical professionals provide to the public.

Thatonassessmentofqualityandeffectivenessandsafetyofthatprofessionalservice the medical council can assess and even withhold a license to provide professional service to the public.

The ‘equal status’ defined in the Act related to is broad. The Act states simply a professional service, nothing more compared to UK Equality act 2010 UK (applies to doctors with dual registration UK and Ireland).

This Act was also based on directive 2000/78/EC, the relevant sections are section 29 And section 53 of the act, that directly refers to service providers and bodies that are qualification Bodies so that the GMC is referred to as a service provider and qualification body, based acts Are based on directive 2000/78/EC same law.

Findings and Conclusions:

This has been an unusual case for a number of reasons.

The case file contains around 6100 pages of documents and almost 250 separate documents; the greater number of which were received from the complainant.

They were written in what might charitably be described as a challenging and unconventional style.

Some flavour of this may be gleaned from what is set out above, which despite being edited to the best extent possible in order to attempt to capture the complainant’s case remains difficult to follow, (even to the extent that this can be gleaned from the material).

More often, much of the content of the submissions failed to directly address the preliminary points raised by the respondent, which was what the complainant had asked to be permitted to do.

Specifically, he was facilitated with an opportunity to make further submissions on the jurisdictional issues raised by the respondent, and this too precipitated a flurry of submissions and correspondence, (some nine items in al ultimately) almost none of which addressed the issues they were intended to, except to the extent summarised above.

They address long standing grievances held by him against the medical regulatory authority in England and Wales, which can form no part of the consideration of this complaint, and further complaints against the Medical Council of Ireland.

As will be seen below it has also been the subject of High Court litigation.

The respondent raises four preliminary points related to jurisdiction.

As I will deal with the time limits issue first the enumeration that follows differs slightly from that of the respondent. As noted, despite the opportunity given to him to do so the complainant did not adequately address most of the points that follow, or in some cases, at all.

1. The ES1 form was sent to the respondent on March 16th, 2023, in respect of an alleged breachon January 16th, 2023., the date on which the respondent refusedtoplacethe complainantontheRegister.

The complaint form was received by the WRC on July 26th, 2023, over six months after the alleged prohibited conduct. There was a further complaint form on October 24th, 2023. (The complainant in his oral evidence referred to the breach as actually having occurred in 2017).

The respondent’s further grounds are as follows (as set out in its submission above).

2. The WRC does not have jurisdiction over the matters complained of, and that the complaint is misconceived, including on the basis of section 22 of the Act of 2000. (Respondent’s ground 1).

3. The WRC does not have jurisdiction to hear the complaint where the same matters have already been determined by the High Court and relies on the Supreme Court judgement in Munnelly v Margaret Hassett, Timothy Cremin and City Learning Limited [2023] IESC 29

On the basis of both res judicata and the rule in rule in Henderson v. Henderson which have the effect that matters that will by the time of the currently scheduled hearing have been heard by the High Court should not be heard by the WRC. (Respondent s ground 2).

4. The consideration and making of decisions of applications for registration in Ireland with the Medical Council are not services within the meaning of the Act of 2000. That Council, in considering applications for registration in Ireland, was performing its functions as set out under Part 6 of the Act of 2007 and as a result, is entitled to avail of the exemption under section 14 of the Act of 2000. (Respondent s ground 3).

These four points represent considerable objections to proceeding to a hearing of the complaint.

As it turns out, they are insuperable, for the reasons which now follow.

First, in relation to the time limits, The ES1 form was received by the respondent on March 16th, 2023, in respect of a breach alleged to havethatoccurredonJanuary 16th, 2023,namelythedecisionoftherespondent torefusetoplacehimontheRegister.

The complaint form was lodged with the WRC on July 26th, 2023, just over six months after the alleged prohibited conduct. As noted earlier, the complainant at one stage described the breach giving rise to the complaint as having occurred in 2017, perhaps unaware of a time limits issue.

There is the further complication of the second, later complaint form.

But even giving him the benefit of the doubt on that is of no assistance to his complaint in this regard. Nor did he offer anything that would meet the ‘explain and excuse’ test in relation to the delay, as is required by the authorities on this point, (notably Cementation Skanska (Formerly Kvaerner Cementation) v Carrol, Determination DWT 0338.)

His explanation that he thought he had six months from the date of submitting the ES1 form, is simply an error on his part and does not excuse his failure to submit his complaint within the statutory time limits.

On this ground alone, the complaint is not within jurisdiction.

While nothing that follows can place it any further out of jurisdiction, I propose to address those other issues briefly for the sake of clarity and certainty.

The second ground relates to the principle of res judicata and the rule in Henderson v Henderson, and again the arguments and authorities are well set out in the respondent’s submission above.

The complainant placed great emphasis on his right to a hearing and particularly as an EU derived right in respect of equality, he insisted on the responsibility of the WRC to hear it.

The respondent answers this by saying that the complainant has already had his right to a hearing vindicated by an audience in the High Court, the judgment of which I have read and fully considered bearing in mind the deference due to the decision of a superior court by this tribunal.

(This deference is not shared by the complainant, incidentally who, among other arguments in his post-hearing submission, asserted that the WRC should hear this case on account of ‘errors’ made by the High Court).

In that case, Mr Justice O’Higgins addresses the discrimination complaint (precisely the same facts as are being raised in this hearing) in paragraphs 70-74 of the judgement. He notes (in paragraph 70)

The appellant submits that the Medical Council has discriminated against him on grounds of his sexual orientation. In my view this is the low point of the appellant’s appeal. No evidence has been adduced by the appellant to justify this very serious allegation.

The learned judge continues in paragraph 73.

In justifying his complaints, the appellant points to his perception that the decision to refuse his application for registration was influenced by his sexual orientation. In my view a litigant’s perception and sensitivities are important and should always be respected by a court. However, a litigant's perception is no substitute for evidence or coherent argument. Perceptions cannot be tested or scrutinised the way evidence can.

The Court proceeded to make very critical comments of proceedings brough by the complainant against certain parties in the Medical Council hearings alleging discrimination, saying (at paragraph 74) ‘these allegations are without substance and should not have been made’.

It cannot be credibly advanced, therefore, that the High Court did not have the allegation of discrimination on the grounds of sexual orientation before it or that it did not fully consider it.

Indeed, even if there were no rule of res judicata the strength of the Court’s trenchant dismissal of the allegations ought to give any complainant pause for thought as to the prospects of success in any other forum.

The view of a High Court judge that such a complaint represented the ‘low point’ of the appeal and specifically on the grounds that ‘no evidence had been adduced to justify this very serious allegation’ (of discrimination of the grounds of sexual orientation) would cause most potential complainants to seriously review the prospects of their complaints to reach the standards required for a prima facie case in another forum such as the WRC.

I am aware that in this WRC complaint the complainant also raises an issue on the grounds of his disability.

But the rule in Henderson v Henderson also applies in that regard; having raised the issue of discrimination in the Court, the rule requires him to litigate all issues (of discrimination) he wished to have considered at the same time. The rule is aimed at avoiding a proliferation of processes arising from the same set of facts.

Accordingly, the respondent’s submission on this ground is also well founded and provides further grounds to place the complaint out of jurisdiction.

The third ground relates to whether the services provided by the Medical Council constitute a ‘service as envisioned by the Equal Status Act.

The respondent refers above to the decision of the WRC in Rajesh Rajoria v The Irish Medical Council, ADJ-00049707, where it was held that the consideration and making of decisions in respect of registration applications with the Medical Council were not ‘services’ within the meaning of the Act of 2000.

As the author of that decision, I see no reason to depart from the legal reasoning which gave rise to it; specifically, the authorities referred to in the case and the views of Professor Judy Walsh in the ‘Equal Status Acts 2000-2011, 2012 edition’ quoted above by the respondent, and which also appear in the Decision in Rajoria.

The complainant weakly argues that because the medical profession is a section of the public it may be brought within the terms of the Act. Having regard to the nature of the Medical Council’s functions in relation to the regulation of access to the practice of medicine this is an argument with no merit whatsoever.

In summary, I decided in that case and now do so again that the regulation of medical practitioners and the practice of medicine and is not a service of the type defined in the legislation. Similar comments apply to the respondent‘s final ground.

As noted above, in Rajoria I stated that I ‘saw no basis for taking a different view on the extensive and consistent authorities submitted by the Respondent, which provide ample reasons to conclude that I did not have jurisdiction to consider the complaint as it is not a matter envisaged as being covered by the statute.’

And that remains the position; no argument has been advanced by the complainant to displace the rationale in Rajoria. He has simply stated in his post-hearing submission that as the WRC is administering justice, failure to admit his complaint would be unconstitutional.

He makes a related point that denial of access to justice contravenes the Charter of Fundamental Rights of the European Union. In this regard the complainant appears to advocate for some absolute, unrestricted access to justice, which, for example has no regard to time limits, or other proportionate limits or restrictions, which, are constructed to take into account the rights of all parties to fairness in the process.

As will be clear from the foregoing the WRC is obliged to apply the statutes under which complaints are brought to it. Any restriction on the complainant’s access to justice is in the first place a result of his failure to submit his complaint within the required time limits, to which the other grounds above may be added.

In summary, while any one of these grounds would have been sufficient to render the complaints out of jurisdiction, taken together they represent a formidable, cumulative basis for doing so.

For all of these reasons, I find that the complaints are not within the jurisdiction of the Equal Status Acts, and they do not succeed.

Decision:

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

For the reasons set out above complaint CA-000057915 is not within jurisdiction and it is not upheld.

Dated: 11-03-2025