by Matthew Austin December-04-2017 in Litigation & Dispute Resolution, Professional Negligence, Regulatory & Administrative Law
The Court of Appeal recently gave judgment in a case which arose from a fitness to practise inquiry into the professional conduct of a registered vet, Lucian Podariu. The decision concerned procedural issues arising from the Veterinary Practice Act, 2005 (“the Act”) but which have a broader relevance to fitness to practise inquiries across the professions.
A number of complaints were received by the Veterinary Council of Ireland (“VCI”) in relation to Mr Podariu’s handling and treatment of certain animals. In accordance with the procedures laid down by the Act the complaints were first considered by the Preliminary Investigation Committee of the VCI before being referred to an inquiry before the Fitness to Practise Committee (“FTPC”) of the VCI.
The inquiry before the FTPC commenced on 20 May 2013 and the FTPC was asked to consider a number of allegations of professional misconduct which were set out in a Notice of Inquiry. Among the allegations set out in the Notice of Inquiry was an allegation that Mr Podariu had failed to maintain any or adequate contemporaneous records of his treatment of the animals. During the course of the inquiry Mr Podariu produced a number of notebooks which he claimed were his contemporaneous handwritten records for the relevant time period. In response to this the Registrar of the VCI proposed adducing evidence to the effect that the relevant notebooks, sold by the Lidl supermarket chain, were not on the market in Ireland in the relevant time period and therefore the records relied upon by Mr Podariu could not be contemporaneous records.
On 27 June 2013 Mr Podariu was notified of the Registrar’s intention to apply to add an allegation of misconduct to the Notice of Inquiry to allege that Mr Podariu had acted dishonestly in producing the notebooks as contemporaneous records of his handling and treatment of the animals. Upon resumption of the inquiry Mr Podariu’s lawyers did not dispute that the FTPC was entitled in principle to amend the Notice of Inquiry in the manner described. The FTPC permitted the amendment and ultimately found Mr Podariu guilty of professional misconduct by reference to the additional charge only. The FTPC recommended that Mr Podariu be censured for misconduct.
A number of months later the VCI considered the recommended sanction and decided to impose a stiffer sanction, namely suspension for six weeks of Mr Podariu’s registration as a vet.
The matter ultimately made its way to the Court of Appeal where Mr Justice Hogan gave judgment. He found that the FTPC had no jurisdiction to consider the allegation which had been added to the Notice of Inquiry regarding the Lidl notebooks. He found that the legislation required that a new or fresh complaint first had to be considered by the Preliminary Investigation Committee before being considered by the FTPC, a procedural step which could not be by-passed, as had occurred in Mr Podariu’s case. That being said, Mr Justice Hogan went on to find that Mr Podariu had acquiesced in the addition of the extra allegation of misconduct when no objection was made at the time. Therefore, the FTPC decision to add the allegation of misconduct stood.
However, Mr Justice Hogan took issue with the imposition of a suspension by the VCI. The Act required a finding of unfitness to practise by the FTPC before a more serious sanction such as suspension could be imposed. In Mr Podariu’s case, no finding of unfitness to practise had been made by the FTPC so Mr Justice Hogan held that the VCI was not entitled to impose the more serious sanction of suspension.
The regulation of the professions in Ireland is governed by various pieces of legislation. The Podariu case concerned the Veterinary Practice Act, 2005 but the judgment has a broader application to disciplinary inquiries in general, particularly in relation to the procedures employed in dealing with those inquiries.
A link to the full judgment of Mr Justice Hogan can be found here.
For further information, please contact Matthew Austin maustin@hayes-solicitors.ie at Hayes solicitors.
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About the Author
Matthew Austin
Matthew is a partner in the Commercial & Business team and has considerable expertise in a range of practice areas, having acted for Irish and International clients in domestic and multi-jurisdictional issues. Matthew has advised in civil and administrative law disputes and in regulatory and advisory matters including insolvency/restructuring, IP, defamation and media law, competition and consumer protection and data protection.