The Supreme Court has dismissed a doctor’s appeal over whether the Medical Council was an association of undertakings when it issued ethical rules restricting medical advertising.
Mr Justice Fennelly delivered the judgment on 29 April 2010. The appeal concerned a preliminary issue in the doctor’s action against the Council. The Court held that, under the Medical Practitioners Act 1978 and in issuing the Ethical Guide, the Council could not be considered an association of undertakings for competition law purposes. It dismissed the appeal and affirmed the High Court order. It did not decide the remaining claims in the action.
The proceedings arose after the doctor circulated a leaflet in October 2002 advertising a self-employed practice combining conventional medicine with clinical ortho-molecularisation. The leaflet listed conditions it said the clinic addressed and claimed, among other things, that the approach had potential to improve quality of life and cure diseases, including cancer, alongside other interventions.
The Medical Council’s Fitness to Practise Committee found that the circular advanced the doctor’s professional reputation, was designed as advertising and implied unique solutions to health problems in a way liable to raise unrealistic expectations. It found professional misconduct and recommended erasure from the register. The Council later ordered that the doctor be struck off for one month, imposed conditions on his ongoing registration, directed compliance with the Ethical Guide and censured him. The judgment records that the doctor had separately sought judicial review of the Committee’s decision.
In the competition proceedings, the doctor argued that the Council’s advertising rules and their enforcement restricted or distorted competition. The High Court had decided the association-of-undertakings question as a preliminary issue and ruled against him. On appeal, the Supreme Court considered the Council’s statutory functions and composition, along with the nature of the rules and their application.
The Court said restrictions on advertising can affect economic competition, but found that the Council’s rules in this case were predominantly motivated by patient interests. It considered the Committee’s concerns about self-promotion, claims of special skills and the risk of misleading potential patients. Those concerns, the judgment said, reflected the exercise of public-interest powers rather than action to protect doctors’ economic interests.
The ruling addresses the Council’s status when issuing the Ethical Guide under the 1978 Act. The judgment noted that the Council’s composition had since been changed by the 2007 Act, making the question largely historical apart from its effect on the appellant.