Veterinary Council of Ireland V Timothy Brennan [2020] IEHC 655

In a recent High Court case, Ms Justice Irvine had to consider whether to confirm a decision of the Veterinary Council of Ireland (the “Council”).

Background

The Council brought an application under section 80(5) of the Veterinary Practice Act 2005, as amended by the Veterinary Practice (Amendment) Act 2012 (the “Act”). The Council sought an order confirming the decision under section 80(1)(b) of the Act to cancel Mr Brennan’s registration for a period of two months. Mr Brennan had not appealed the decision under section 80(3).

The allegations of wrongdoing related to Mr Brennan’s handling of animal remedies and specifically:-

1. his failure to provide an adequate description of animal remedies;
2. having in his possession unauthorised animal remedies;
3. his failure to include a serial number on labels affixed to animal remedies;
4. his failure to keep adequate records.

Mr Brennan was an equestrian vet. It is understood that there was an inspection by the Department of Agriculture at a horse trainer’s yard on 9 February 2015 which identified veterinary bottles with deficient labelling and lacking serial numbers. His vehicle was inspected and bottles of unauthorised bottles of animal remedies were seized. Mr Brennan later admitted in an interview with officials he did not have records at his practice of the products seized.

Fitness to Practice Committee Report and the Council Decision

There was an inquiry into those allegations outlined by the Fitness to Practice Committee. Oral evidence was heard and character references and documentation was also provided. The Committee was satisfied that the allegations had been proved beyond reasonable doubt; allegations ii, iii and iv had been admitted by Mr Brennan.

The Committee found that these allegations amounted to professional misconduct representing a serious falling short of the standard that could reasonably be expected of a registered vet. The Committee considered that his conduct merited a 6 month suspension but due to the fact that Mr Brennan had made certain admissions that had considerably shortened the length of the inquiry then the period of suspension should be reduced to 4 months. Having then deliberated on the Committee’s report and certain mitigating factors, the Veterinary Council decided, pursuant to section 80(1)(b) of the Act to cancel Mr Brennan’s registration for a period of 2 months rather than the 4 months which the Committee had recommended.

High Court Judgment

Ms Justice Irvine considered section 80(5) of the Act which states:-

“Where the registered person to whom the decision relates has made no application under subsection (3) within 21 days of the notification under subsection (2), the High Court may, on an application to it in a summary manner by the Council make:-
(a)  an order confirming or setting aside the making of the decision concerned,
(b)  an order remitting the decision concerned with or without directions to the Council, for reconsideration by it and the making of a new decision in relation to it,
(c)  any other order that it considers appropriate.”

Ms Justice Irvine highlighted that the Court was not confined to confirming the decision as it was also entitled to make any order it considered appropriate under section 80(5)(c), notwithstanding the fact that the registrant had not appealed. She noted the differences in wording between this section of the Act and equivalent sections in the relevant Medical Act and Nursing and Midwifery Act.

Her view on considering all of the case law was that it was not perhaps clear that section 80(5)(c) meant that the Court had to take the strict approach that it would only set aside a decision which is so unreasonable that no reasonable decision maker would make it, but a decision on that point would need to wait until that case was fully argued before the Court.

She therefore turned to make her decision. She considered the Council’s decision and the fact it took various mitigating factors into consideration including a series of devastating personal tragedies. She felt that the Council attributed significant weight to the mitigation.

Ms Justice Irvine was critical of the reliance placed on certain of those factors, in particular that (a) the respondent would not repeat the professional misconduct and (b) certain personal tragedies which the respondent experienced in his personal and professional life at the time of his misconduct. She considered that the Council had erred as a matter of law in relying upon factor (b) which she noted were completed unconnected to his misconduct as there was no direct causal link between the personal tragedies and the misconduct itself.

She therefore considered the consequences of the Council’s errors when asked to approve a sanction which were not validly constructed because of its basis on considering these mitigating factors.

She firstly considered whether to remit the decision to the Council for its reconsideration. However she did not believe this was in the interests of any of the parties.

Ms Justice Irvine pointed out that it was not the role of the High Court to simply rubber stamp the decisions of regulatory bodies, and in certain instances the Court would refuse to endorse a regulatory body’s decision – but that this was not one of those cases.

Her view was that the sanction of 2 months imposed by the Council was, in her words “somewhat less stringent than it might have been”. Nevertheless she felt that to refuse to confirm the sanction she would have to have reason beyond the fact that had she been the primary decision maker, she might have favoured a somewhat lenient approach.

She pointed out that the Council had a large amount of specific knowledge and it was mentioned here that the Court should afford some degree of deference to the Council which considering whether or not to confirm the proposed sanction. She did note however that there are certain areas which will be within the Court’s specific expertise to assess, such as mitigation and therefore there is a balancing act to be carried out by the Court.

She concluded that she did not think that the lenience shown by the Council was such that it justified the Court refusing the sanction, even if she had broader jurisdiction than if the matter related to another profession. As a result she confirmed the decision of the Council pursuant to the provisions of s 80(5) of the Veterinary Practice Act rather than remitting this back to the Council.

Conclusion

This case is interesting in highlighting some of the differences in the various professional regulatory statutory regimes and the nuances which certain legislation possess. Whilst this case does not fully tease out the extent of the High Court’s powers under section 80(5)(c), it does continue to highlight that the role of the High Court is not to step into the shoes of the primary decision maker when deciding whether to confirm decisions of regulatory bodies.

For further information on this topic, please contact Laura Graham at lgraham@reddycharlton.ie