Ahmed -v- The Fitness to Practice Committee of the Medical Council & ors, [2018] IEHC 75 (2018)

Docket Number:2015 692 JR
Party Name:Ahmed, The Fitness to Practice Committee of the Medical Council & ors
 
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THE HIGH COURT

JUDICIAL REVIEW[2015 No. 692 J.R.]

BETWEEN

SAQIB AHMED APPLICANTAND

THE FITNESS TO PRACTICE COMMITTEE OF THE MEDICAL COUNCIL FIRST NAMED RESPONDENTAND

THE MEDICAL COUNCIL SECOND NAMED RESPONDENTAND

(BY ORDER) THE MINISTER FOR JUSTICE AND EQUITY, IRELAND THE ATTORNEY GENERALTHIRD, FORTH AND FIFTH NAMED RESPONDENTS

JUDGMENT of Mr. Justice Meenan delivered on the 16th day of February, 2018.

Background:

1. The applicant in these proceedings is a registered medical practitioner within the meaning of the Medical Practitioners Act 2007 (“the Act of 2007”). At the relevant time, the applicant was employed as a medical oncology registrar in the Mid-Western Regional Hospital, Dooradoyle, County Limerick.

2. The applicant was the subject of a fitness to practice inquiry, held before the first named respondent under Part 8 of the Act of 2007. This inquiry arose from a letter of complaint sent to the second named respondent, dated 26th November, 2012.

3. A notice of inquiry was served on the applicant. This notice listed some nine separate allegations which, in turn, were subdivided into further allegations. In all, the applicant was facing some 30 separate allegations. The notice alleged that one or more of the factual allegations and/or sub allegations amounted to poor professional performance and/or professional misconduct. The particulars of the evidence to be considered at the inquiry were attached to the notice. Included in this was an expert report to be prepared by Dr. Paul Henry, consultant clinical oncologist, Belfast City Hospital, in respect of the allegations of poor professional performance and/or professional misconduct.

4. The inquiry took place before the first named respondent between 9th - 11th March, 2015, 29th June - 1st July, 2015 and on 29th July, 2015. It was agreed at the outset of the inquiry that the standard of proof to be applied would be the criminal standard.

Hearing before the first named respondent

5. Following the conclusion of the hearing, there was only one finding of poor professional performance made against the applicant, arising from allegation 7(b) of the notice of inquiry, all other allegations having been not proven or withdrawn. I will set out in its entirety allegation 7, as it appeared in the notice of inquiry:-

“7. On or around 6th November, 2012, in respect of patient B.K. who was transferred from Bon Secours Hospital, Tralee, County Kerry, you:

a) Failed to record one of more of the following in Patient B.K’s medical records:

i. An assessment of patient B.K’s condition; and/or

ii. A medical history in respect of patient B.K.; and/or

iii. An examination of B.K.; and/or

iv. A plan for treatment B.K.; and/or

b) Failed to request the following basic tests to include but not limited to:

i. Blood test(s); and/or

ii. Urine test(s); and /or

iii. Kidney function test(s); and/or

c) Prescribed 100 milligrams of allopurinol for patient B. K. when you ought to have known that 300 milligrams was a more appropriate dose and/or

d) Demonstrated poor clinical judgment and/or a lack of empathy for patient B.K…”

6. At the hearing, evidence was heard from Professor Rajnish Gupta (who made the complaint), Dr. Denis O’Keffe, Dr. Kamal Fadalla and Dr. Paul Henry. The applicant represented himself at the hearing.

7. Following the conclusion of the hearing, the first named respondent issued a report. This report listed, inter alia, the allegations that were either proven or not proven or withdrawn, the names of those who gave evidence and the various documents considered. In respect of allegation 7(b) the report stated as follows:-

“Allegation 7(b) was proven as to fact. The reason: The totality of the evidence established this beyond a reasonable doubt. Finding: This amounted to poor professional performance. Reason: The evidence of Dr. Henry established that this was a very serious failure to meet standards of competence that can reasonably be expected of an oncology registrar.”

Further,

“In relation to the cumulative allegation of poor professional performance, this was in relation to the factual suballegations listed at 7(a) and 7(b) the committee found the cumulative allegation of poor professional performance was not proven.

Reason: Not proven beyond a reasonable doubt...”

Having made the aforesaid findings, the first named respondent recommended to the second named respondent, in respect of the sanction to be imposed, that the applicant be admonished.

Proceedings before the second named respondent

8. Section 69 of the Act of 2007 provides that the first named respondent shall, on completing its inquiry, submit to the second named respondent a report in writing on its findings. This report shall specify the nature of the complaint that resulted in the inquiry, the evidence presented, findings as to whether any allegation is proved and such other matters related to the medical practitioner, the subject of the complaint, as considered appropriate by the first named respondent.

9. Section 70 of the Act of 2007 provides that the second named respondent shall, on receiving the report referred to in s. 69, if any allegation is proven, impose one or more than one sanction on the practitioner.

10. The sanctions set out in s. 71 of the Act of 2007 are as follows:-

“(a) an advice or admonishment, or a censure, in writing;

(b) a censure in writing and a fine not exceeding €5,000;

(c) the attachment of conditions to the practitioner’s registration, including restrictions on the practice of medicine that may be engaged in by the practitioner;

(d) the transfer of the practitioner’s registration to another division of the register;

(e) the suspension of the practitioner’s registration for a specified period;

(f) the cancellation of the practitioner’s registration;

(g) a prohibition from applying for a specified period for the restoration of the practitioner’s registration.”

11. Section 75 of the Act of 2007 provides that a “registered medical practitioner the subject of a decision under section 71 to impose a sanction (other than a sanction referred to in section 71 (a))…” may appeal to the High Court against the decision.

12. The report of the first named respondent concerning the applicant came before the second named respondent for the purposes of imposing a sanction on 17th September, 2015. Following submissions, which the applicant made on his own behalf, and questions put to the applicant, the second named respondent imposed the sanction of “advice” as is provided for in s. 71(a) of the Act of 2007.

13. The Act of 2007 does not provide for any appeal where a sanction under s. 71(a) is imposed.

Judicial review proceedings

14. By order of the High Court, 14th December, 2015, the applicant was granted leave to apply by way of an application for judicial review for the followings reliefs:-

i. An order of certiorari quashing the report of the first named respondent herein, which report was considered and adopted by the second named respondent on 17th September, 2015, and which report found that the applicant was guilty of one count of poor professional performance, pursuant to an inquiry held under the Act of 2007,

ii. An order of certiorari quashing the decision of the second named respondent made on 17th September, 2015, wherein the second named respondent imposed a sanction of advice upon the applicant pursuant to s. 71. of the Act of 2007,

iii. A declaration that the decision of the first and/or second named respondent to find the applicant guilty of an allegation of poor professional performance and/or the decision of the second named respondent to impose a sanction upon the applicant, without the applicant having the right to appeal the said finding and/or sanction is contrary to the applicant’s rights pursuant to the Constitution and/or pursuant to the European Convention on Human Rights.

15. In his statement to ground the application for judicial review, the applicant set out the basis on which he sought to have the decision of the first named respondent finding him guilty of poor professional performance in respect of allegation 7(b) in the notice of inquiry quashed:-

“iv. the first respondent misdirected itself in fact or in law in its decision to reach a finding of poor professional performance on the basis of the expert evidence;

v. in failing to have any or any adequate regard for the fact that the expert witness called on behalf of the chief executive officer for the second respondent did not give any oral evidence to the effect that the allegation in question was, in isolation, capable of amounting to poor professional performance the first respondent acted irrationally and/or unreasonably and/or failed to observe the applicant’s entitlement to natural justice by finding the applicant guilty of poor professional performance in relation to the isolated allegation.

vi. the first respondent acted irrationally and/or unreasonably and/or contrary to the expert evidence in concluding that allegation 7(b) was in isolation and in the context of the...

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