The High Court has ruled that the Medical Practitioners Act 2007 gives it no express or implied power to hear in private an application to confirm the cancellation of a doctor’s registration. The court has not yet decided whether this particular hearing should be held privately.
The Medical Council applied under section 76 of the Act after its December 2016 decision to cancel the respondent’s registration. That decision followed a Fitness to Practise Committee finding of professional misconduct and a recommendation that the registration be cancelled. The Council adopted the recommendation. The committee hearing and the Council’s hearing were held in private, and the Council decided not to publish details of the sanction.
The judgment, delivered by High Court President Mr Justice Kelly on 3 October 2017, addressed only whether the court had power to hear the section 76 application otherwise than in public. The Council sought written submissions and oral argument on that question before the court proceeded further.
The judge found that the Act expressly allows private hearings before the Fitness to Practise Committee in specified circumstances. It also expressly permits a private court hearing for an application under section 60 to suspend a practitioner’s registration. But it contains no equivalent provision for a section 76 application to confirm a sanction. The judge rejected the argument that the court’s power could be implied from the private hearings held by the committee and Council, or from the Council’s decision not to publicise the outcome.
The respondent argued that privacy should continue through the court stage, including to honour assurances to witnesses. The judgment said the committee’s authority to hold its own hearing privately did not bind either the Council or the court. It also noted that the notice to witnesses offered an opportunity to request a private committee hearing, not a guarantee that later proceedings would remain private.
The judge further held that the Council’s decision under section 85 not to advise the public of the outcome could not create a power for the court to sit privately. The Act’s purpose and the constitutional requirement that justice generally be administered in public weighed against implying such authority.
However, relying on the Supreme Court’s 2017 decision in Gilchrist, the court accepted that it has a common law power to hold a hearing privately in appropriate circumstances. Any exception to open justice must be strictly scrutinised, and the court must consider whether narrower steps could protect the interests involved.
The court did not apply that power to the facts at this stage. It said it would hear submissions from the parties after they had considered the judgment on whether the circumstances justified a private hearing.