High Court 

Eastern Health Board v Fitness to Practice Committee of the Medical Council and Others

1997/122 JR  

3 April 1998 

BARR J: 

This matter has come before the court by way of application for judicial review pursuant to the order of Laffoy J made on 14 April, 1997 which provided, inter alia, that the applicant do have leave to apply for orders of Certiorari, Prohibition and Declarations regarding orders made in proceedings entitled The Medical Council and Dr Kathleen Cecilia Moira Woods (Dr Woods) on 20 December, 1996, whereby the applicant herein was directed to produce medical records in its possession relating to certain children -- being children of parents referred to in this application as families R, F, S and H. The grounds on which Laffoy J made her order are those set forth at paragraph (e) in the applicant's statement grounding the application for judicial review and are as follows:- 

"The respondent has exceeded its jurisdiction in purporting to direct the applicant herein to produce the medical records in the possession of the applicant in relation to the patients set out therein in that the said records relate to matters which were the subject matter of 'in camera' proceedings before the Courts of this jurisdiction. The Rule of Law governing the conduct of 'in camera' proceedings precludes the parties to such proceedings and/or any witnesses from being summoned to Court to give evidence at the said hearings and from discussing the contents of those proceedings with any third party, either during the course of the proceedings or at any time thereafter." 

THE FACTS 

The facts relevant to this application are not in dispute and are contained in the affidavit of Paul Harrison, director of the Child Care and Family Support Services of the applicant, sworn on 25 March, 1997 as amplified in the affidavit of Brian V Lee, registrar of the Medical Council, sworn on 27 May, 1997. 

The Statement of Opposition filed on behalf of the respondent sets out the following grounds:- 

"1. That a substantial proportion of the medical records in the possession of the applicant came into existence and were prepared otherwise than for the purpose of an 'in camera' proceeding, and are accordingly in any event amenable to the orders of the 20 December, 1996. 

2. That, if and insofar as there is a rule of law prohibiting the dissemination of material that is given in evidence or discussed in camera, it does not and cannot apply to material that was created outside the context of the 'in camera' proceedings. 

3. That, if and insofar as the applicant would otherwise be under a duty to refrain from furnishing any medical records in its possession, it is excused from that duty by virtue of the position of the respondent under the provisions of the Medical Practitioners Act, 1978 and, in particular, Section 45 thereof. 

4. That the duty of the applicant to comply with summonses issued by the respondent pursuant to Section 45(6) of the Medical Practitioners Act, 1978 overrides any duty that it might otherwise be under not to divulge documents in its possession on the grounds stated. 

5. That the applicant lacks locus standi in respect of the relief sought at paragraph D(2) to (5) of the Statement of Grounds. 

6. That the respondent is both entitled and obliged to proceed with its Inquiry pursuant to Section 45 of the Medical Practitioners Act, 1978, and for the purposes of that Inquiry to obtain, disseminate, discuss and inquire to the extent necessary into relevant documentation, whether such documentation is in its possession or in the possession of a third party such as the applicant. 

7. That the respondent is both entitled and obliged, pursuant to the provisions of the Medical Practitioners Act, 1978, for the purposes of its Inquiry to require the attendance before it of any relevant witness whether such witness previously gave evidence in the course of 'in camera' proceedings or otherwise. 

8. That the respondent is both entitled and obliged, pursuant to the provisions of the Medical Practitioners Act, 1978, for the purposes of its Inquiry to require any such witness to give evidence, whether or not this involves such a witness disclosing or discussing the details of an 'in camera' proceeding or matters related thereto. 

9. Without prejudice to the foregoing, that the mere fact of documentation having been discussed in the course of an 'in camera' proceeding, or of a matter having been the subject matter of an 'in camera' hearing, does not and cannot of itself mean that the same are subject to any prohibition of further discussion or inquiry. 

10. The relief sought is inconsistent with the powers, rights and privileges of the Fitness to Practice Committee granted by Section 45 of the Medical Practitioners Act, 1978 and the Fitness to Practice Committee has the same right and entitlement to direct the production of documents as the High Court. 

11. That the respondent is entitled in its discretion to determine to hold its Inquiry in public and (without prejudice to that contention) was entitled in its discretion to determine to hold the Inquiry in public subject to the safeguards that it has imposed. 

12. Such further or other grounds as may be notified." 

The applicant (hereinafter called the EHB or the Board) is a statutory health board having responsibility for the care of deprived children within its geographical area which includes the city and county of Dublin. The Medical Council (the Council) is a statutory body created by the Medical Practitioners Act, 1978 (the Act) to provide, inter alia, for the registration and control of persons engaged in the practice of medicine. The Fitness to Practice Committee (the Committee) is a body established by the Council under Section 13(2)(b) of the Act to perform the functions of the Council under Part V of the Act which relate to, inter alia, investigation of the fitness of registered medical practitioners to practice their profession by reason of alleged professional misconduct or incompetence. Section 45 of the Act lays down the framework for an inquiry by the Committee into the conduct of a registered medical practitioner. Sub-section (6) is in the following terms:- 

"(6) The Fitness to Practice Committee shall for the purpose of an inquiry held under Sub-section (3) of this section have the powers, rights and privileges vested in the High Court or a judge thereof on the hearing of an action in respect of -- 

(a) the enforcement of the attendance of witnesses and their examination on oath or otherwise, and 

(b) the compelling of the production of documents, and 

(c) a summons signed by the Chairman of the Committee or by such other member of the Committee as may be authorised by the Committee for that purpose may be substituted for and shall be equivalent to any formal procedure capable of being issued in an action for enforcing the attendance of witnesses and compelling the production of documents." 

The first notice party, Dr Woods, was at all material times a member of the medical staff attached to the Sexual Assault Treatment Unit of the Rotunda Hospital, Dublin. She is a specialist in the diagnosis and treatment of child sexual abuse. In paragraph 3 of his affidavit, Mr Lee has deposed that:- 

". . . these proceedings relate to an Inquiry before the Fitness to Practice Committee of the Medical Council arising out of complaints made against Dr Woods by parents of a number of children, all of which children were examined by her . . . These children attended [the Rotunda Sexual Assault Treatment Unit] and in a number of cases, Dr Woods came to the conclusion having examined the children that they had been sexually abused by a relative. I say and believe that the central issue before the Inquiry will be the standard of clinical judgment and competence demonstrated by Dr Woods in reaching these conclusions. It is important to bear in mind that these conclusions were not reached specifically for the purpose of 'in camera' proceedings, although in a number of cases the conclusions made by Dr Woods obviously led to a proceeding of that nature. Two of the children concerned are now of full age. All of the children have been involved in proceedings in the District Court or the High Court relating to alleged sexual abuse which, pursuant to statute, were heard in camera. Certain reports and records referred to therein would have come into existence independently of the proceedings in which they were produced; others may owe their origin to such proceedings. The Committee already has in its possession some relevant medial records relating to the children which were also referred to in proceedings in camera." 

Pursuant to its powers under Section 45(6)(b) of the Act, the Chairman of the Committee made orders directed to the Chief Executive of the EHB calling on him to make available the medical records in the possession or power of the Board relating to the children in question, all of whom are or have been under the care of the EHB. The Board has taken the view, and it has been argued by Mr Herbert on its behalf, that at law it is precluded from complying with the Committee's order directing production of such records. Furthermore, it has been argued on behalf of the Board that the Committee is prohibited by law from availing of documents and records already in its possession which were introduced in evidence in proceedings relating to the children or any of them and which are protected by the 'in camera' rule -- even records which did not originate in protected proceedings. The EHB relies on the judgment of Laffoy J in MP v AP Dr John Connolly (Applicant) [1996] 1 IR 144 in support of its position. It also relies on that judgment as authority for the proposition that the Committee is not lawfully entitled to pursue a complaint against Dr Woods in respect of any child who was the subject-matter of 'in camera' proceedings in which documents emanating from Dr Woods or evidence relating to her dealings with the child or its parents were introduced in evidence. In addition to the judgment in Dr Connolly's case, the EHB also rely on a ruling made by Carney J in the Central Criminal Court in The People v WM, [1995] 1 IR 226. 

Affidavits have been sworn by three notice parties. Dr Woods supports the Committee's application for production of the records in question by the EHB, but she submits that in the interest of the children and their families, the proposed Inquiry should be conducted in camera. The other notice parties are parents of children about whom the EHB has in its possession relevant medical records. One parent is a complainant against Dr Woods; the other has made no complaint against her. The former has deposed that he and his wife have applied to the Committee to have their complaints against Dr Woods heard in private and that wish has been acceded to by the Committee. The deponent opposes the EHB's application and submits that if parties who gave evidence at a hearing of a Habeas Corpus application about his children which was held in camera, are precluded from giving evidence at the Committee's Inquiry, he believes that a full and proper hearing of his family's complaint against Dr Woods will be undermined. 

The other notice party is strongly opposed to the Inquiry being held in public. She is also particularly concerned that the identity of her children should not be divulged at the Inquiry and that the emotional and mental welfare of her children should be protected by preserving their anonymity. 

There is no doubt that the Committee has an important statutory duty under Part V of the Act, in the interest of alleged victims and of the public at large, to investigate fully complaints of professional misconduct or incompetence made against any registered medical practitioner. In the instant case it may be impossible for the Committee to carry out a meaningful investigation of the complaints made against Dr Woods if it is unable to obtain the medical records which it seeks and is otherwise inhibited by the 'in camera' rule. 

THE ISSUES 

The primary question for determination is whether there is an absolute embargo on the production in subsequent proceedings of information which derives from or was introduced in proceedings protected by the 'in camera' rule. Two subsidiary questions require to be addressed if the court decides that such an absolute embargo exists. First, does it include all documents, records and information introduced in proceedings protected by the rule? Secondly, does the embargo necessarily imply that alleged professional misconduct or incompetence relating to documents furnished, information supplied or evidence given in proceedings protected by the 'in camera' rule or related conduct by the person against whom complaint is made, cannot in law be the subject-matter of investigation in subsequent proceedings, including criminal proceedings or an inquiry by a professional body (such as the Committee) having a statutory duty to investigate such complaints. 

If the court decides the primary issue in favour of the Committee, there are two subsidiary matters for consideration. First, does the court have a discretion to impose terms regarding the disclosure of information which emanates from proceedings protected by the 'in camera' rule? Secondly, does that discretion include a requirement that the proceedings for which such information is sought must itself be conducted in camera if there is provision at law for holding such proceedings in private? 

THE LAW 

The following authorities are relevant to the issues before the court:- 

Article 34(1) of the Constitution provides that:- 

"Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public." 

The "special and limited cases" which permit of a restriction on the publicity of the administration of justice are comparatively few and are statutory in nature. A number of statutes provide for court hearings in private. For example, Section 45(1) of the Courts (Supplemental Provisions) Act, 1961 enacts that justice may be administered otherwise than in public in: 

(a) applications of an urgent nature for relief by way of habeas corpus, bail, prohibition or injunction; 

(b) matrimonial causes and matters; 

(c) lunacy and matters involving minors; or 

(d) proceedings involving the disclosure of a secret manufacturing process. 

Other statutes which provide for hearings in private include the Adoption Act, 1952, Section 20; the Adoption Act, 1988, Section 3(5); the Official Secrets Act, 1963, Section 12; the Criminal Procedure Act, 1967, Section 16(2); the Criminal Justice Act, 1951, Section 20(3) and (4); the Finance Act, 1949, Section 30; the Family Law (Protection of Spouses and Children) Act, 1981, Section 14(2); the Judicial Separation and Family Law Reform Act, 1989, Section 34; the Marriages Act, 1972, Section 1(3); the Married Women's Status Act, 1957, Section 12(4); the Status of Children Act, 1987, Section 36(4) and the Companies Act, 1963, Section 205(7). 

In Re R Limited, [1989] IR 126, the Supreme Court examined Article 34 in the context of the Companies Act, 1963, Section 205(7), which provides:- 

"If, in the opinion of the court, the hearing of proceedings under this section would involve the disclosure of information, the publication of which would be seriously prejudicial to the legitimate interests of the company, the court may order that the hearing of the proceedings or any part thereof shall be in camera." 

It was held by the Supreme Court (Walsh, Griffin and Hederman JJ; Finlay CJ and Hamilton P dissenting), in allowing the appeal of the applicant and directing that the proceedings be heard in public that one of the requirements essential to the administration of justice was that it be in public unless that requirement, by itself, operated to deny justice in the particular case and this principle was enshrined in Article 34, s 1 of the Constitution. Accordingly, the specific exceptions to the administration of justice in public permitted by Article 34 were limited to those cases which were "prescribed by law" and where it was shown that the publicity, by itself, would deny justice as between the parties. In his judgment (with which Griffin and Hederman JJ agreed) Walsh J stated that:- 

"What is to be noted in Section 45 [of the Courts (Supplemental Provisions) Act, [1961] is that the cases set out in Sub-section (1) do not impose any requirement for hearing otherwise than in a public court but leave it to the discretion of the judge in question, but naturally the discretion must be conditioned by the necessary qualification that the doing of justice remains the paramount consideration . . ." 

The granting of permission by the court to publish information relating to 'in camera' proceedings was adverted to by Budd J in PSS v JAS (Otherwise C) and Others,judgment delivered on 22 May, 1995 (unreported). The case concerned unauthorised publication of matters pertaining to 'in camera' proceedings. The judgment contains the following passage at pp 17/18:- 

"The present case was . . . heard 'in camera'. In this country, child abduction cases involving the Hague and Luxembourg Conventions are dealt with in camera, and the proceedings may not be published in such a way that the parties can be identified, except in the rare instances when the court gives permission in respect of such publication . . ." 

The judgment of the Supreme Court in Barry v The Medical Council and the Fitness to Practice Committee of the Medical Council, judgment (unreported) delivered by Barrington J on 16 December, 1997 deals with the right of the Committee to decide whether an Inquiry under Section 45 of the Medical Practitioners Act, 1978 shall be heard in public or in private, notwithstanding the absence of specific statutory authority for the Committee to make such a decision. The conclusion of Barrington J who delivered the judgment of the court, is contained in the following passage at p 10:- 

"In these circumstances the only question is not whether the Committee has the right to conduct its proceedings in private but whether it has a discretion to conduct them in public. While the Act contemplates that proceedings before the Fitness to Practice Committee shall be in private, it does not require it. I can see no reason why the Committee should not hold its proceedings in public if all parties were agreed and if the Committee itself thought it was the proper thing to do. While therefore the normal procedure before the Committee is to hold its proceedings in private, I see no reason why it should not hold its proceedings in public in a proper case. In other words I think the Committee has a discretion in this matter." 

I have been unable to discover any reported Irish authority in which the parameters and consequences of the 'in camera' rule have been definitively argued on behalf of interested parties on each side of the case. However, that matter, or aspects thereof, has been considered in the following English authorities:- 

In Scott v Scott, [1913] AC 417 where there had been unauthorised dissemination to third parties of the official shorthand writer's notes of a nullity suit heard in camera, it was held by the House of Lords per Viscount Haldane LC that:- 

"The general rule as to publicity must yield to the paramount duty of the court to secure that justice is done; and it is open to a party in a matrimonial suit, upon proof that justice cannot be done otherwise, to apply for a hearing in camera, and even for the prohibition of subsequent publication of the proceedings, in exceptional cases." 

In Re R (MJ) (an infant), [1975] 2 All ER 749, Rees J in the Family Division held that the court had power to permit publication of information relating to wardship and adoption proceedings heard in private. He stated that when exercising that power the court should have regard not only to the child's welfare but also to other matters such as the public interest in the administration of justice. The application concerned documents emanating from wardship and adoption proceedings held in camera relating to evidence of means given by an alleged bankrupt and sought by the trustee in bankruptcy in subsequent proceedings. 

[There is no provision in Irish law similar to Section 12 of the Administration of Justice Act, 1960 in English law. In this jurisdiction the relevant law is what Rees J referred to as "the old law of contempt".] The judgment contains the following passage at pp 754/5:- 

"A further question was raised in the argument before me, namely, whether a court had the power to give leave for the publication of information relating to wardship or adoption cases heard in private having regard to the provisions of s 12 of the 1960 Act. It was suggested that the effect of the section was that the publication of information in those cases (as well as the others specified in the section) was itself a contempt of court and the statute contains no provision enabling a judge to permit publication. The contrary argument was that under the old law it was well established that a publication authorised by order of the court did not constitute a contempt and that s 12 could not have intended such a result without express words. It is clear in my view that the old law did provide that a publication of information about cases lawfully heard in camera did not amount to contempt if done by leave of the court. It will be sufficient to cite the words of Wynn-Parry J in Re De Beaujeu, [1949] 1 AER 439 at 441 as a modem statement of the law as it stood up to 1960. Wynn-Parry J said:- 

'In my judgment in proceedings involving wards of court the judge has a complete discretion to allow or forbid publication of the proceedings or any order made therein. In the absence of any special direction, I am of opinion that prima facie it would be a contempt of court to publish an account of proceedings relating to an infant conducted in chambers without the express permission of the judge who heard the case.' 

No case has been cited to me which decides that a judge has no power to give leave to publish information in cases held in private. The practice of judges in wardship cases has frequently been to authorise publication of details to the press and in public when to do so has been in the interest of the ward, eg, to enable a missing ward to be traced. In these circumstances I find it impossible to regard s 12 as making such a radical change in the law and practice relating to contempt as to impose an irremovable ban on publication of information in all circumstances without using express words to do so . . ." 

The conclusions of the learned judge are in the following passage at pp 755/6:- 

"The central questions in this application are whether there are any criteria which apply to the exercise of the court's discretion to permit publication and, if so, what they are. It is plain in my judgment that the first and most important consideration is the interest of the ward . . . It was common ground among all concerned in the application, and I so hold, that no legitimate interest of the minor would be prejudiced if the application were granted . . . It was submitted on behalf of the Official Solicitor that leave should only be given in cases in which disclosure could be shown to be for the benefit of the minor involved in the particular case or for the benefit of minors generally in future cases. I do not accept that submission. Where it is plain -- as here -- that disclosure would not harm any legitimate interest of the minor, that is an important factor to be taken into account in favour of giving leave. Equally, in support of the contrary view, it is proper to take into account that it has not been shown that it would be for the positive benefit of this minor nor that of minors in future cases that disclosure should be granted . . . 

The case against granting the application may, I hope, not unfairly be stated thus. It is conceded that disclosure in the instant case will not harm any legitimate interest of the minor but harm will be done in future cases if the application is granted because witnesses will, or may, be deterred from giving evidence with that degree of frankness which is the essential need in cases involving the welfare of minors. The proper approach to the application is to ask whether the disclosure can be justified as being conductive to the good exercise of the wardship jurisdiction. To that question the answer is 'No'. If evidence of a criminal offence comes to light in the course of proceedings in private whether it be perjury or any other offence, the judge himself has ample power of his own motion, if he sees fit, to refer the matter of the Director of Public Prosecutions . . . 

My conclusions are these. A judge dealing with such an application has an unfettered discretion to grant or to refuse it. He will place the interests of the minor in the forefront of his considerations. He will also give considerable weight to the public interest in ensuring that frankness shall prevail in such proceedings by preserving confidentiality. The public interest in upholding the law of the land by providing relevant evidence for use in other legitimate proceedings must also be considered together with all the other circumstances of the case. I do not believe that it would be either possible or profitable to attempt to lay down any general principles governing the exercise of this discretion beyond what I have attempted to state above." 

The entire of the foregoing passage was approved by Balcombe LJ in Re Manda, [1993] 1 FLR 205 at p 211. The conclusions of Rees J were also referred to with approval by the Court of Appeal in Re F (minors), [1988] 3 WLR 818 at p 826 and by Waite J in X, Y, & Z (minors) infra. 

The next judgment for consideration is that of the Court of Appeal in England in Re Manda referred to above. Leave was sought to disclose documents from wardship proceedings to experts for the purpose of a potential claim for damages in negligence against the Council in whose care the ward had been, a health authority and a consultant paediatrician. It was held by the Court of Appeal per Balcombe LJ: 

"(1) The interests of the child would always be the most important factor, since it was to protect those interests that the court imposed the curtain of privacy. 

(2) Where the child was still a minor, the court would have to decide where its interests lay, although the older the child, the more relevant were its own views and wishes. Where the child had attained majority, he or she alone (unless mentally incompetent) was entitled to decide what were his or her interests. 

(3) If, as was usually the case, the material was to be disclosed for use in other proceedings, the public interest in the administration of justice required that all relevant information should be available for use in those proceedings. 

(4) The possible inhibition of frankness on the part of the witness in wardship proceedings was a relevant factor to be taken into account on an application for leave to disclose material used in wardship. If information used in child proceedings had been obtained on an express assurance of confidentiality, that must be a relevant factor. Where no such express assurance had been given, persons who gave evidence in child proceedings might normally assume that their evidence would remain confidential, but they should not assume that it would remain so in all circumstances. 

The judge should consider the applicant's prospects of success in the proposed litigation for which disclosure was sought. If the proposed litigation was bound to fail, it was difficult to see how it could ever be for the benefit of the minor to permit disclosure for the purposes of that litigation." 

Balcombe LJ in course of his judgment referred with approval to the judgment of Ralph Gibson LJ in Brown v Matthews, [1990] Ch 662 at p 672 where he stated in dealing with the inhibition of frankness argument:- 

"'It seems clear to me that any person asked by a court welfare officer to provide information for such a report, whether a party to the proceedings, a friend or relation of a party, or a doctor or teacher who has treated or taught the child, would know that the information which he or she gives to the welfare officer, and his or her identity as the giver of it, would be made known for the purposes of the court's inquiry and therefore disclosed to the parties. Most people, I think, would if they thought about it, suppose that the information would not be used for any other purpose but they would be neither surprised nor indignant if told that it could be used for another purpose if the court considered that it was proper, in the interests of justice, for it to be disclosed at the court's direction. For my part, therefore, I do not think that there is any reason to believe that there would be any significant effect upon the willingness of the people of this country to provide information to court welfare officers in preparing reports for the court, if people were told that normally no use would be made of the information given, save in and for the proceedings in which the report had been ordered but that it might also be used at the order of the court if justice required that it be not limited solely to that primary use.'" 

The parameters of the 'in camera' Rule was also considered by Waite J in Re X, Y, and Z (minors) Family Division, [1992] 2 All ER 595. In that case a national newspaper published articles criticising two paediatricians for what was said to be their incompetent use of unsound techniques for the investigation of child sexual abuse and the irresponsible promulgation of those techniques to impressionable colleagues, thereby giving rise to erroneous diagnosis and a consequent witch-hunt by social workers for child abuse which had caused widespread and unnecessary suffering to numerous families. The paediatricians sued the newspaper and its editor for libel. The newspaper pleaded justification relying on a number of case histories, particulars of which were pleaded in its defence, including case histories involving children who were or had been wards of court. The newspaper applied for leave, subject to undertakings to preserve confidentiality, to have access to the wardship court's files relating to the wards or ex-wards concerned and for leave to be able to make use of relevant documents from the files for the purposes of the libel suit. It was held that the mere status of being a ward of court did not confer on a child any right, as such, to have its affairs cloaked in secrecy, since the privilege of confidentiality relating to a ward was that of the court, not of the child, the primary purpose of that privilege being to protect the court in the exercise of its paternal functions. [Having regard to the principle which is long established in Irish law, and appears to be accepted in the other English cases referred to supra, that the interest of the child is paramount, I apprehend that the foregoing dictum would not find favour in this jurisdiction, though it is probable that it would be held that the privilege of confidentiality also extends to the court in such cases]. It was also held by Waite J that the embargo against publication of information relating to wardship proceedings contained in s 12(1) of the Administration of Justice Act, 1960 was not absolute and the court had a dispensing power at common law to authorise publication in particular instances and for particular purposes of information relating to its proceedings. That dispensing power could be exercising in favour of a third party who was neither a party to nor had any direct connection with the child welfare proceedings but who wished to make use of information confidential to the wardship proceedings in collateral civil proceedings, and regardless of whether he was litigating in his own right or in a representative or official capacity. However, in determining an application to make use of information confidential to the wardship proceedings, the court would consider how the application, judged as a whole, would affected the children concerned, the public interest in the due administration, in accordance with its parental functions, of the wardship jurisdiction and the public interest in the fair and informed administration of justice in the collateral civil proceedings. The judgment contains the following passage at pp 597/8:- 

"This application (so far at least as it seeks authority to inspect confidential court files) is agreed on all sides to be without precedent and to involve issues of public policy which require an examination of first principles. It will therefore be convenient to begin with a statement of those principles, as I understand them to be before turning to a more detailed description of the background." 

[The learned judge then referred to the privilege of confidentiality on which I have already commented]. 

He continued:- 

"Another limitation on the absolute character of the statutory prohibition in s 12(1)(a) is that the common law implies into it a dispensing power in the court of child welfare to authorise publication in particular instances, and for particular purposes. of information relating to its proceedings: see Re R (MJ) (an infant) [judgment of Rees J referred to supra] and Re F (a minor), [1977] 1 AER 114 (decisions which recently received the approval of the House of Lords in the analogous context of the mental health jurisdiction in Pickering v Liverpool Daily Post and Echo Newspapers plc, [1991] 1 All ER 622. 

This dispensing power may be exercised in favour of a party to the child welfare proceedings who wishes to make use of information relating to those proceedings in other litigation to which he is a party: see Brown v Matthews, [supra] (where the Court of Appeal allowed a party to divorce proceedings in the county court, in which issues of child custody had arisen, to make use of a welfare officer's report prepared for the purposes of those proceeding in an entirely separate Chancery action maintained by that spouse against his former father-in-law regarding the proceeds of sale of the previous matrimonial home). 

The dispensing power may also be exercised in favour of a third party, that is to say someone who is neither a party to nor has any direct connection with the child welfare proceedings themselves. There are, for example, recent instances of it being exercised in favour of a third party for the purpose of collateral criminal proceedings, see Re S (minors), [1987] 3 All ER 1076 and Re F (minors) [1989] Fam 18 where leave was given for information relating to wardship proceedings in the form of videotapes of diagnostic interviews and medical records in one case, and transcripts of the judgment and evidence in the other, to be made available to the police for the purpose of criminal proceedings against alleged sexual abusers of the wards concerned. 

The dispensing power applies also in favour of a third party wishing to make use of information confidential to the family proceedings in collateral civil proceedings: see Re R (MJ) (an infant) [supra] . . . I should add that this power of exemption may be exercised, in my judgment, in favour of any third party who is engaged in collateral civil proceedings, whether he is litigating in his own right or in a representative or official capacity. I was not able to accept the qualifications suggested by the Official Solicitor that the dispensation is only available to a litigant exercising some public function analogous to that of a police authority or a bankruptcy trustee acting under the auspices of the court . . ." 

Waite J then quoted with approval the basis on which the court exercises its discretion to grant or refuse a third party's application to make use in collateral proceedings of information relating to child welfare proceedings held in private as stated by Rees J in Re R (MJ) (an infant), supra, to which I have already referred. 

Circumstances similar to those in the instant case were considered by Cazalet J in A County Council v W & Others, (Disclosure) (Family Division), [1997] 1 FLR 574. The General Medical Council (GMC) sought leave for disclosure of documents in earlier care proceedings, pursuant to its statutory duties which included its duty to protect members of the public. It sought disclosure to establish whether charges should be brought against a father who was a registered medical practitioner, to determine whether he had been guilty of serious professional misconduct. A finding was made in care proceedings that sexual abuse by him of his daughter had occurred. The GMC received letters from the police and the local authority regarding the care proceedings. The Registrar to the GMC passed the papers to a preliminary Screener (a medical member of the GMC) whose task was to decide whether the case should be referred for consideration by the Professional Conduct Committee (PCC). The Screener referred the matter and further information was sought by way of the application in the care proceedings. 

It was held -- allowing the application -- 

"(1) The court had to weigh a number of competing factors. The factors against disclosure were as follows:- 

(i) If some disclosure was made to the GMC there was likely to be further inquiries made of the family by the GMC which would inevitably cause the children trauma and upset. 

(ii) Although all matters before the Screener and the PCC were in private, if and when a charge was made against the father, the nature of the charge would have to be specified publicly. If the charge was found proved, there would be further additional dangers of identification at that stage so far as the child was concerned. 

(iii) The GMC did not have the power to order the press not to publish details about proceedings. 

(iv) The child now maintained her denial that any impropriety had occurred, despite her earlier statement that it had. The PCC had a discretion to admit evidence beyond that which would be admitted in a criminal trial and the PCC might consider this to be a case suitable for the exercise of its discretion. 

(v) It was submitted that the reality was that the father, in his particular field, would never be any risk to the child community at large. 

(vi) A decision adverse to the father would inevitably affect his income and cause financial detriment to his family. 

(vii) In Re X (minors) (Wardship: Disclosure of Documents) sub-nom Re X, Y, and Z (Wardship: Disclosure of Material), the court had very much in mind the extent to which justice would be at risk if access to the undisclosed material was allowed in circumstances where the assurance of confidentiality given to those who had provided evidence was breached. 

(2) The factors in favour of appropriate disclosure were:- 

(i) If the father were to find himself unable to practice in his present field, he might have to look for work on a broader front, where he could find himself working with children. There might therefore be a risk to the community. 

(ii) Whilst the GMC might have difficulty in proceeding if the child concerned continued to maintain her denial of any sexual abuse, the discretion of the PCC set out at (1)(iv) above could be significant. 

(iii) The GMC was fully prepared to co-operate as appropriately as it could to reduce the risks of publicity or any leak. General injunctive relief could also be sought to reduce any publicity that there might be if a charge were to be brought. If evidence was further disclosed. the PCC would be expected to exclude the public and media from hearing any such evidence and the matters which would eventually be in the public domain would deal solely with the specific charges, with anonymity for the child and no detail of evidence publicly stated. 

(3) In carrying out the balancing act, the welfare of the children in this case must be a major factor in the exercise of the court's discretion. There were no circumstances in which disclosure could promote the welfare of any of the children and therefore the court must be extremely reluctant to make any order for disclosure. 

(4) In this case there was an overwhelming and overriding public interest that the appropriate GMC Conduct Committee should be in a position to consider whether it should bring charges against the father and to consider carefully from the stand point of the public, the position and status of his registration as a medical practitioner. 

(5) The public interest was a strong argument for some appropriate disclosure which might have to follow as a stage-by-stage process." 

The judgment of Cazalet J contains the following passage at p 588:- 

"In carrying out the balancing exercise in determining this application, I bear fully in mind that the welfare of the children in this case must be a major factor in the exercise of my discretion. I accept that there are no circumstances which disclosure here could possibly promote the welfare of any of these children. Indeed, for the reasons I have given, disclosure, even with steps taken to minimise the pain that it will cause, could prejudice the welfare of these children through the risk of any sexual abuse perpetrated by the father becoming general knowledge. Against this background I must be extremely reluctant to make any order for disclosure. There must be potent reasons to take such a course. 

I bear in mind the dictum of Booth J in Re R (MJ) (a minor), (Publication of Transcript), [1975] FAM 89. She took the view that even though the results of disclosure may have far-reaching impact on young and damaged children, their interests are secondary to the greater public need. In my view, in this case, there is an overwhelming and overriding public interest that the appropriate GMC Conduct Committee should be in a position to consider whether it should bring charges relating to serious professional misconduct against a practitioner who has been found in civil proceedings to have sexually abused his daughter and to consider carefully from the stand point of the public the position and status of his registration as a medical practitioner. I bear in mind the inevitable anxiety that may be caused to the children as a result of their evidence being taken further, even though in private, this could lead on to the father losing his job in his chosen profession with all the adverse effects, including serious financial consequences which may follow." 

The learned judge added:- 

"In my view, the public interest, as I have stated it to be, is a very strong and potent argument for disclosure [in this case] and the balance comes down firmly [in its favour]." 

I am satisfied that the principles which emerge from the foregoing English authorities as to judicial discretion in the context of the 'in camera' rule also reflects the position at common law in this jurisdiction. 

As already stated, the primary authority relied on by the EHB for not complying with the discovery orders made by the Committee is the judgment of Laffoy J in MP v AP Dr John Connolly, Applicant, [1996] 1 IR 144. The head-note is as follows:- 

"Section 34 of the Judicial Separation and Family Law Reform Act, 1989, provides that proceedings taken under the Act shall be heard otherwise than in public. Section 40 of the Act inserts in Section 11 of the Guardianship of Infants Act, 1964, the following:- 

'(5) The court may, of its own motion or on an application under this section . . . procure a report from such person as it may nominate on any question affecting the welfare of the infant.' 

The plaintiff and defendant, a wife and husband respectively, obtained a decree of judicial separation in May, 1992 at which time they agreed custody and access terms in respect of the children of the marriage. Disputes arose between the plaintiff and the defendant and the matter of custody and access was re-opened before the High Court; ultimately, in November, 1993, a settlement was reached in the terms of a consent between the parties which recited, inter alia, at paragraph 9 thereof that 'in the event of any disagreement in regard to the running of access arrangements, the first recourse by both parties will be a joint meeting with [the applicant, a consultant psychologist] to enable an agreed settlement to be developed'. The consent was received as part of the order of the High Court. 

In June, 1994, further disputes having arisen, the defendant applied to the High Court for the attachment and committal of the plaintiff for alleged breaches of paragraph 9 of the consent. At the request of the plaintiff's solicitors, the applicant dealt in writing with certain factual matters contained in the affidavit grounding the defendant's application; in addition, the applicant expressed a view in respect of the issue of access that was favourable to the plaintiff and criticised the defendant's capacity to act as a parent to the children. 

The applicant's letter came to the attention of the defendant who wrote to the applicant asking that certain alleged factual inaccuracies be corrected and inviting the applicant to revise the conclusions which he had reached. The applicant did not accede to the defendant's requests and, following further correspondence, the defendant in his capacity as a client of the applicant made a complaint to the Psychological Society of Ireland ("the Society") of which the applicant was a member, requesting that it investigate whether the applicant had acted fairly, reasonably and professionally in his dealings with the plaintiff and the defendant. The applicant was asked by the Society to comment on the defendant's complaints and applied to the High Court for directions whether he was at liberty to discuss the matter with the Society and whether the defendant was entitled to maintain his complaint having regard to the 'in camera' rule of the court in matrimonial proceedings and in light of the privileges attaching to the applicant as a potential witness in respect of the correspondence and advices. 

For the applicant it was contended that he was entitled to declaratory relief to the effect that he ought not deal with the complaint as that would involve a breach of privilege and publication of matters, the subject of 'in camera' proceedings, contrary to Section 34 of the Judicial Separation and Family Law Reform Act, 1989. The applicant submitted that his role, by virtue of paragraph 9 of the consent, was similar to the role of an expert appointed under Section 40 of the Act of 1989. Counsel for the plaintiff contended that any dissemination of information to a third party relevant to the issues in the proceedings, breached the 'in camera' rule and constituted a contempt of court. It was further contended that Section 34 of the Act of 1989 was mandatory and afforded a court no discretion to permit any disclosure of information of the proceedings to third parties. For the defendant it was submitted that the applicant's position was one of a mediator and not analogous to that of an expert engaged pursuant to Section 40 of the Act of 1989. Further, it was contended that the only issue which the court had jurisdiction to deal with was whether there had been a breach of the 'in camera' rule and it was argued that not all such breaches constituted a contempt of court. 

Held by Laffoy J, in giving directions:- 

1. that Section 34 of the Act of 1989, was mandatory; in making the complaint to the Society, the defendant divulged to the public confidential matters arising out of proceedings taken under that Act and, accordingly, contravened that section. 

2. That the court had an inherent jurisdiction to take whatever steps were necessary on its own motion to ensure that Section 34 of the Act of 1989 is complied with. PSS v JAS, Independant Newspapers Ireland Limited and Others(unreported, High Court, Budd J, 22 May, 1995) followed. 

3. That the defendant's complaint to the Society could not be prosecuted without further infringement of Section 34 of the Act of 1989 in light of the fact that the complaint concerned the contents of a letter which commented upon the defendant's evidence on affidavit in support of a motion in proceedings taken under the Act of 1989. 

4. That the court required an undertaking from the defendant to withdraw from the Society all documentation submitted by him in relation to the applicant's involvement with the parties or their children and an undertaking not to disseminate to any third party any information whatsoever in relation to the issues in these proceedings. 

5. That although the defendant's conduct might be construed as reprehensible, it would not be proper for the court to rule upon the question of contempt of court as the defendant did not participate in this application in order to defend such an allegation of contempt but to offer his submissions on the application for directions. 

6. That the protection afforded a witness from any civil proceedings in respect of his evidence as a witness and any statements made in preparing evidence must, having regard to considerations of public policy, extend to afford such a witness immunity from disciplinary proceedings or investigation by a voluntary professional organisation to which he was affiliated. 

Semble: there exists two classes of contempt of court, one of which might be described as any act done or writing published calculated to obstruct or interfere with the course of justice or the lawful processes of the courts." 

The judgment contains the following passage at pp 154/5:- 

"Section 34 of the Act of 1989 is mandatory and, in accordance with that provision these proceedings, including the defendant's motion for attachment and committal, being proceedings under the Act of 1989, have been held otherwise than in public. In submitted to the Society the documentation he submitted with his letter dated 9 May, 1995, in my view, the defendant divulged to a section of the public, the staff and officers of the Society, confidential matters which arose in the proceedings and which Section 34 requires should be kept confidential and private to the parties to the proceedings and the court, and in doing so contravened Section 34. 

Although the applicant has not asked the court for an order restraining the defendant from prosecuting the complaint to the Society, the plaintiff, who I am satisfied has a legitimate interest to be protected, has sought an order which will have this effect. Moreover, in my view, the court has an inherent jurisdiction to take whatever steps are necessary on its own motion to ensure that Section 34 of the Act of 1989 is complied with. I find support for this view in the approach adopted by Budd J in S(PS) vIndependent Newspapers (Ireland) Limited [Otherwise PSS v JAS and Others] where, having been informed that material concerning an 'in camera' case had been broadcast, he joined RTE as a notice party of his own motion to a contempt motion initiated by the plaintiff and directed to other parties. The defendant has been heard on this application and has denied that there has been a breach of Section 34 and contends that the complaint against the applicant can be prosecuted before the Society without contravening Section 34. I have found that there has already been a breach of Section 34. The suggestion that the complaint can be prosecuted without further infringement of Section 34 is disingenuous, having regard to the fact that the nub of the defendant's complaint is the contents of a letter which comments on the evidence on affidavit of the defendant in support of the motion for attachment and committal and the issues which were raised by that motion. 

Accordingly, unless the defendant gives an undertaking to the court to withdraw from the Society all documentation he has submitted to the Society in relation to the applicant's involvement with himself, the plaintiff or the children, and an undertaking not to disseminate to the Society or to any third party any material, documents, evidence or information whatsoever in relation to the issues in these proceedings between the parties or concerning the children, I propose making orders directing and restraining the defendant in those terms. I propose making those orders on the basis that the defendant has divulged information and proposes to continue to do so contrary to Section 34. However, the defendant's conduct might be construed as being more reprehensible than merely having divulged information which should not have been divulged, in that, in essence, what the defendant sought to do was to procure that the applicant change his views and opinions, albeit views and opinions which the defendant contended were erroneous in relation to a function he was performing in pursuance of an order of the court. However, as the defendant participated in this application to put forward his views on the applicant's request for directions, not to answer a charge of contempt of court, it would clearly be improper for this court on this application to consider whether the defendant's conduct constitutes a contempt . . . While no authority has been cited which supports the proposition that an expert witness is immune from disciplinary proceedings or investigation by a voluntary professional organisation to which he is affiliated in respect of evidence he has given or statements he has made with a view to their contents being adduced in evidence, having regard to the public policy considerations which underlie the immunity from civil proceedings -- that witnesses should give their evidence fearlessly and that a multiplicity of actions in which the value or truth of their evidence would be tried over again should be avoided -- in my view, such a witness or potential witness must be immune from such disciplinary proceedings or investigation. 

However, I consider that it is not necessary to make a declaration that the Society cannot conduct any inquiry in relation to evidence given by the applicant or any statements made by the applicant in preparation for oral testimony or evidence on affidavit in these proceedings because such inquiry is precluded by Section 34 of the Act of 1989. 

The grievance which the defendant harbours in relation to the contents of the letter of the 21 July, 1994, and their communication to the plaintiff's solicitor may be justified. However, the defendant's remedy was to put what he believed to be the true facts and true expert opinion as to his parenting capacity before this court at the hearing of the motion for attachment and committal and to seek such variation of the provisions of the order of the 1O November, 1993, as the evidence adduced by him indicates . . . As he did not adopt that course, I find that it is not necessary to express any view as to whether such communications are privileged and, if so, whether such privilege can only be waived by the mutual consent of both." 

There are three crucial distinctions between the circumstances of MP v AP and those in the case before this court:- 

(i) The issue raised in the former was unauthorised disclosure to the Society of information emanating from proceedings protected by the 'in camera' rule. In condemning such publication, Laffoy J followed long established precedent that information covered by the 'in camera' rule cannot be divulged to anyone outside the protected proceedings without leave of the court. No such leave had been obtained by the defendant before publication of the offending material by him. In the instant case no disclosure has yet been made by the Board and, in effect, the court is being asked by the Committee to authorise disclosure of the relevant records by the EHB pursuant to the statutory right of the Committee to receive such material, having regard to its duty to investigate the complaints made against Dr Woods. 

(ii) The observations of Laffoy J on the holding of an inquiry by Dr Connolly's professional body, the Society, into the complaints made against him by the defendant appear to amount to criticism of the legality of an investigation by the Society of the defendant's complaint emanating from protected information unlawfully divulged by him to the investigating body without the authority of the court. 1 do not interpret her judgment as implying that there is an absolute embargo on a professional body which prevents it from carrying out its duty to investigate a complaint of professional wrongdoing or incompetence against one of its members in connection with a matter which is protected by the 'in camera' rule. 

(iii) In order to express a definitive judgment on the parameters of the 'in camera' rule in the context of an inquiry by a professional body, such as the Committee or the Society, into a complaint of professional wrongdoing or incompetence made against one of its members, it is necessary to hear all relevant parties including, of course, the professional body whose rights and duties regarding investigation of such complaints are vitally concerned. That was not the issue before Laffoy J. If it had been then no doubt she would have joined the Society as a notice party and in all probability the authorities referred to herein would have been opened to her. In the event, the only one which appears to have been adverted to was the judgment of Budd J in S (PS) v Independent Newspapers (Ireland) Limited, supra, though not that part which is pertinent to the issue herein. It was not relevant to issues raised in MP v AP for the learned trial judge to consider all of the parameters of the 'in camera' rule, including consequences which would flow from an absolute embargo on information emanating from or relating to 'in camera' proceedings. 

It is evident that the judgment of Laffoy J is based on a premise which does not exist in the proceedings before this court. In my view it is of no assistance to the EHB in sustaining the case which it makes regarding the production of the documents and records in question which are protected by the 'in camera' rule; the use of such documents already in the possession of the Committee or as to the right of the Committee to proceed with its enquiry about the complaints made against Dr Woods. 

The EHB also rely on the ruling of Carney J in The People v WM, [1995] 1 IR 226. In that case the accused pleaded guilty in the Central Criminal Court to certain offences under the Punishment of Incest Act, 1908. After conviction but before sentence, the EHB wrote to the trial judge explaining that it had an interest in the case on behalf of certain minor children of the accused and, having regard to the need to make appropriate arrangements for their protection, it was concerned to ascertain details of any custodial sentence imposed on the accused. It was held by Carney J in withholding the information sought:- 

1. That while the Board was manifestly entitled to receive the information, the court was precluded from disclosing it, as it would fly in the face of the word 'in camera' to indicate what had taken place to a person not present or entitled to be present in court. 

2. That were the case still on-going, the court would be required to refuse admission to the social workers of the Health Board unless they were giving evidence at the trial or as to sentence, and even then they would be precluded under the law of contempt of court from subsequent discussion of the case. 

Semble: that in cases, such as those referred to in Section 6 of the Criminal Law (Rape) (Amendment) Act, 1990, where the Oireachtas had conferred a discretion on the trial judge to admit appropriate persons to court, "appropriate persons" would readily include social workers and representatives of a Health Board, and in appropriate circumstances, other persons such as representatives of a Rape Crisis Centre. 

Section 5 of the Punishment of Incest Act, 1908 provides that "all proceedings under this Act are to be held in camera". 

The reasoning of the learned trial judge is set out in the following passage from his ruling at p 233:- 

"Section 45, sub-section (3) of the [Courts (Supplemental Provisions)] Act of 1961, which enjoys a presumption of constitutionality and the validity of which is not and cannot be challenged in these proceedings, restored Section 5 of the Act of 1908 to full force and effect with the enjoyment, after its Lazarous like resurrection of a like presumption of constitutionality. 

The Act of 1908 was amended by the Oireachtas as recently as 1993 by Section 12 of the Criminal Justice Act, 1993. I must assume that the Oireachtas in examining and amending this statute, saw and adverted to the provisions of Section 5 of the Act of 1908 and was happy to leave this provision intact. Section 5 of the Act of 1908 falls into the category described by Walsh J as 'mandatory privacy'. 

As Section 5 of the Act of 1908 provides that 'all' proceedings under the Act are to be held 'in camera', it is not possible, as is the case with rape offences, to have the trial conducted in private with sentence in the event of a conviction being pronounced in public . . . 

It seems that, pending legislative intervention, incest trials, by reason of the statute law in operation, will have to be held in total secrecy so far as the public is concerned." 

After his ruling which imposed a total ban on the publication of any information regarding the case in question, the learned trial judge received the letter from the Board seeking information regarding the sentencing of the accused and he made a further ruling in response to it in the following terms:- 

"In view of the laws as placed and maintained on the statute book by the legislature, I feel it necessary to bring a consequence of these laws to the attention of the Oireachtas and the executive. 

The ruling of this court delivered on the 1 February, 1995 will have come as no surprise to the executive as it amounted essentially to an acceptance of the submissions made to the court by counsel on behalf of both the Attorney General and the Director of Public Prosecutions . . . 

The court has received a letter from solicitors for the Eastern Health Board which must, of necessity, be edited by me . . . [Carney J set out an edited version of the contents. He quoted again Section 5 of the Punishment of Incest Act, 1908 and then continued]:- 

In these proceedings I accepted the argument of Mr Comyn, counsel for the Attorney General, that this section was not carried forward and ceased to be law on the enactment of the Constitution in 1937, but was re-enacted by the Oireachtas and given a presumption of constitutionality by section 45, subsection (3) of the Courts (Supplemental Provisions) Act, 1961. 

I am required to obey the statute law as much as anybody else and it follows from the legislative process and provision which I have described that pending legislative intervention, I am precluded from giving the Eastern Health Board the information which they seek and need. The Eastern Health Board, which is not a party to this prosecution, manifestly should have this information, but the legislature has tied my hands and precluded its disclosure by re-enacting Section 5 of the Act of 1908 with the presumption of constitutionality. It would fly in the face of the words 'in camera' to indicate what took place to a person not present or entitled to be present in court. Professor James Casey in his book "Constitutional Law in Ireland" (2nd Edition, 1992) at p 441, called attention to the fact that there was, in relation to Section 5 of the Act of 1908, a problem. The legislature, nevertheless, when amending the Act of 1908, as recently as 1993, chose to leave Section 5 in place. 

Another problem should be adverted to. Were this case still on-going, I would be required by the terms of Section 5 of the Act of 1908 to refuse the social workers of the Eastern Health Board admission to court unless they happened to be witnesses in the trial or called to give evidence as to sentence. Even then they would be precluded under the laws of contempt from subsequent discussion of the case. This is in contra-distinction to the provisions of the Criminal Law (Rape) (Amendment) Act, 1990 wherein the Oireachtas has conferred on the trial judge a discretion to admit appropriate persons to court which would readily include social workers and representatives of the Eastern Health Board. It would in appropriate cases include others such as representatives of a Rape Crisis Centre. The Oireachtas, consciously or unconsciously, has failed to extend this discretion to cases of incest. 

While the instant case has concluded, I would feel free to permit the registrar of this court to furnish the Eastern Health Board with the information they need, were the rigidity of Section 5 of the Act of 1908 to be legislatively modified . . ." 

The ruling by Carney J in response to the application of the EHB for information relating to the sentencing of the accused was made without hearing any argument on behalf of the Board regarding its rights and statutory duty on behalf of vulnerable children it is obliged to protect. The learned trial judge did not have the benefit of the authorities which are relied upon by the Committee and which are referred to herein or of the arguments advanced by Mr Feeney on its behalf. If he had had such assistance, he might have been persuaded that the mandatory nature of section 5 of the 1908 Act does not create an absolute embargo in all circumstances on disclosure of information derived from such proceedings. It seems to me that in the absence of argument on behalf of the EHB and a full presentation of the case regarding the parameters of the 'in camera' rule, the ruling of Carney J in The People v WM, the stated purpose of which was to stimulate legislative change, ought not to be interpreted as having the general application contended for on behalf of the Board. 

CONCLUSIONS 

In my judgment the following conclusions emerge from a review of Article 34(1) of the Constitution; the judgments of the Supreme Court in Re R Limited and Barry v The Medical Council; Budd J in the High Court in PSS v JAS and Independent Newspapers (Ireland) Limited and the foregoing English authorities:- 

1. Court proceedings relating to the alleged abuse of children are normally held in camera. This is authorised by Article 34(1) of the Constitution as an exception to the general rule that justice shall be administered in public. 

2. The primary reason for the 'in camera' rule in such cases is to provide protection for minors from harmful publicity arising out of the disclosure of evidence and other related matters in protected proceedings. 

3. A statutory imperative that proceedings of a particular nature be held in private (as provided, for example, by Section 5 of the Punishment of Incest Act, 1908) does not imply that there is an absolute embargo on disclosure of evidence in all circumstances. Such an embargo requires specific statutory authority to displace judicial discretion at common law to permit disclosure in appropriate circumstances. If an absolute embargo on the publication of evidence adduced in course of 'in camera' proceedings in all circumstances were implied from a mandatory requirement that such proceedings be held in private, then grievous harm could be done to public and private interests and to the pursuit of justice. For example, if in course of proceedings in camera, it was established that a witness was guilty of perjury or some other crime, the trial judge would be unable to refer the matter to the Director of Public Prosecutions with a view to having a criminal prosecution brought against the wrongdoer. Likewise, if it emerged in evidence protected by the rule that a professional witness, or a lawyer acting in the case, was guilty of professional misconduct, the trial Judge would be inhibited in referring the matter to the offender's professional body for investigation. It would also follow if there was an absolute embargo that a child concerned in such proceedings would be spancelled in pursuing claims which he or she might have for damages arising out of evidence protected by the 'in camera' rule, notwithstanding that the primary purpose of the rule in such cases is to protect the minor. A major far-reaching change in the law, which sets aside established practice, could not arise merely by implication derived from a mandatory statutory requirement that certain proceedings shall be held in private but, in my view, would require specific statutory authority. 

4. I have been unable to discover any specific statutory provision in Irish law which provides that there is an absolute embargo in all circumstances on the publication of information deriving from proceedings held in camera. 

5. There is an established practice at common law recognised in England and in this jurisdiction (see judgment of Budd J in PSS v JAS and Others, supra) that the court in proceedings held in camera has a discretion to permit others on such terms as the judge thinks proper to disseminate (and in appropriate cases to disseminate himself/herself) information derived from such proceedings where the judge believes that it is in the interest of justice so to do, due and proper consideration having been given to the interest of the person or persons intended to be protected by the conduct of the proceedings in camera. In given circumstances the judge may find that a crucial public interest, such as the prosecution of crime or the protection of vulnerable children, takes precedence over the interest of the protected person in non-disclosure of the information in question. 

6. In considering a conflict between the public interest or the interest of a person seeking disclosure on the one hand, and the interest of an individual in retaining the full benefit of the 'in camera' rule on the other hand, the court is bound by the concept that the paramount consideration is to do justice -- see judgment of Walsh J in Re R Limited, supra. 

7. The use of evidence emanating from an 'in camera' hearing in other legitimate proceedings where the public interest or the interest of the protected person or some other interested party requires, includes not only related litigation in court but also other non-judicial proceedings such as a statutory inquiry by a professional body into complaints made to it about professional negligence or incompetence of one of its members -- see judgment of Cazalet J in A County Council v W & Ors, supra. 

8. It is a contempt of court for any person to disseminate information derived from proceedings held in camera without prior judicial authority. 

9. Some of the legislative provisions relating to 'in camera' proceedings require mandatory privacy and in others it is a matter for the presiding judge to decide whether the proceedings shall be heard in private. In my opinion that distinction relates only to the particular proceedings and whether or not the presiding judge has any discretion therein in deciding on the imposition of the 'in camera' rule. It does not affect in either case the exercise by the court of its discretion to permit the subsequent disclosure of 'in camera' information in the interest of justice, the achievement of which, as previously stated, is its paramount obligation. In short, whether the 'in camera' rule applies mandatorily or by way of judicial discretion does not affect the authority of the court to permit disclosure of protected information where justice requires that disclosure should be made. 

10. If justice requires disclosure of information protected by the 'in camera' rule, the court should take all reasonable steps to protect the interest of minors and others who are intended to have the benefit of the rule in the given case. The court has power, as an incidence of its discretion to permit disclosure of protected information, to impose such terms in that regard as it deems necessary in the circumstances. 

11. In the matter under review complaints of a serious nature which, prima facie, appear to have a significant basis, have been made in five cases involving children alleging professional negligence and/or incompetence by Dr Woods in course of her practice as a medical specialist in the area of diagnosis and treatment of child abuse. In these circumstances, there is an imperative public interest that such complaints should be fully investigated by the Committee as the body having statutory authority to carry out such inquiries. This necessarily entails discovery for use at the Inquiry of all relevant records in the possession of the EHB relating to the children who are the subject-matter of the complaints. I am satisfied that the Committee reasonably requires and is entitled to the documentation which it seeks from the EHB and that in the particular circumstances the public interest takes precedence over the requirement of non-disclosure in the interest of the children which can be substantially protected by the imposition of appropriate terms by the court. I also take into account that, depending on its outcome, the children might derive a benefit from the Inquiry. I direct that the Board shall comply with the discovery orders served on it on behalf of the Committee subject to the terms hereinafter set out. 

12. The court is mindful of its obligation to protect the children who were the subject-matter of the 'in camera' proceedings as far as practicable from any harm to them which might result from the production to and use of the required documentation by the Committee. Accordingly, the court imposes the following conditions on the Committee and the Medical Council:- 

(a) The Inquiry by the Committee (and any subsequent investigation by or on behalf of the Medical Council) into the complaints made against Dr Woods shall be conducted in camera. 

(b) An undertaking shall be given on behalf of the Committee and the Medical Council that the documentation obtained from the Board, and other protected documents already in the possession of the Committee, shall not be divulged to anyone other than the parties to the Inquiry, those associated with it and the Medical Council. 

(c) At the conclusion of the Inquiry into the complaints made against Dr Woods, the Committee and the Medical Council may publish their findings thereon but on terms that the anonymity of the children and their parents shall be preserved. 

(d) All persons who learn of the contents of the documents in question (or any of them) in course of the Inquiry into the complaints made against Dr Woods or in any subsequent proceedings or in any other way are bound by the 'in camera' rule as to confidentiality which is waived by the court only to the limited extent specified herein and subject to the foregoing conditions. 

The Board, the Committee and the notice parties shall have liberty to apply.