B.M. v Fitness to Practice Committee of the Medical Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Meenan
• Judgment Date: 19 February 2019
• Neutral Citation: [2019] IEHC 106
• Docket Number: [2017 No. 973 J.R.]
• Court: High Court
• Date: 19 February 2019

BETWEEN

B.M.

APPLICANT

AND

FITNESS TO PRACTICE COMMITTEE OF THE MEDICAL COUNCIL

RESPONDENT

[2019] IEHC 106

Meenan J.

[2017 No. 973 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Judicial Review – Medical and Healthcare Law – Medical Practitioners Act 2007 – Applicant seeking to challenge decision of respondent to proceed with a fitness to practice inquiry – Whether the respondent acted ultra vires in considering allegations which went beyond the scope of the complaint considered by the Professional Practices Committee

Facts: A complaint was made to the Medical Council against the applicant, a consultant psychiatrist, which was then investigated by the Professional Practices Committee (PPC). The PPC reviewed the complaint and supporting evidence, and the applicant had an opportunity to respond to the complaint. The PCC then instructed an independent expert to review the complaint and the applicant’s response and provide a report as to whether, in his opinion, there had been any failings on the part of the medical practitioner, and whether any such failings were serious. The expert report identified four failings, and characterised one in particular (the applicant’s meeting of a patient in a restaurant) as serious. The matter was then referred to the respondent, the Fitness to Practice Committee, whose role under the Medical Practitioners Act 2007 is, inter alia, to inquire into complaints and to determine if any allegation arising out of a complaint is proved. The applicant argued that as the only failing the expert deemed to be ‘serious’ was his meeting of a patient in a restaurant, this was the only complaint that could be considered by the respondent. The applicant sought orders quashing the decisions of the respondent to proceed with inquiries into allegations that went beyond this failing.

Held by Meenan J that the actions taken by the PCC and the respondent were appropriate. The role of the PPC was to give initial consideration to the complaint, and this was correctly set out in the letter to the expert. There is a distinction between a complaint and an allegation. The CEO of the Medical Council was not confined to the restaurant complaint when he formulated the allegations and referred these to the respondent. Meenan J held that the decision and procedures were in line with the 2007 Act and that the relief sought by the applicant should be refused.

Relief refused.

JUDGMENT of Mr. Justice Meenan delivered on the 19th day of February, 2019

Introduction

1 The application before the Court is a challenge to a decision of the respondent of 15 September 2017 to proceed with an inquiry into allegations of professional misconduct and poor professional performance against the applicant. The applicant maintains that the allegations before the respondent go considerably beyond the complaint considered by the Professional Practices Committee (PPC) and, in particular, are unsupported by the expert report that was obtained by the PPC. The statutory provisions relating to the respondent and the PPC are set out in the Medical Practitioners Act 2007 (the Act of 2007). In the course of this judgment, I will consider the role, function and powers of the PPC in dealing with complaints made against a registered medical practitioner.

The complaint

2 The applicant is a consultant psychiatrist. On 23 October 2014 the Medical Council received a complaint from a former patient (the complainant) who had been referred to the applicant for treatment in or about 2006. The complainant itemised 21 matters of complaint in respect of her interactions with the applicant. In support of these complaints, she exhibited copies of text messages, gifts and cards.

3 Her complaint was investigated by the PPC pursuant to Part 7 of the Act of 2007. Following consideration by the PPC, the complaint was furnished to the applicant seeking his observations and comments. This was provided by the applicant on 4 January 2015 when he gave a detailed account of his treatment of the complainant and provided a response to each of the 21 matters of complaint.

4 The PPC sought an independent expert report to assist it in the consideration of the complaint. By letter dated 21 January 2016, Dr. Giles Constable, consultant psychiatrist, was requested to provide a report as to whether, in his opinion, there had been any failings on the part of the registered medical practitioner and whether any such failings were serious.

5 In preparation of his report, Dr. Constable had available to him, inter alia, the complaint (including supporting documentation), the detailed response from the applicant and statements from other individuals. In his report of 5 July 2016, Dr. Constable identified four failings on the part of the applicant. These failings were outlined as follows:

‘a. He failed to keep adequately detailed and regular notes about his sessions with her

b. He failed to ensure that he had regular supervision to inform how he conducted the case and to ensure that his relationship with [the complainant] maintained suitable boundaries and appropriate therapeutic focus. In my opinion he should have received supervision on at least a monthly basis.

c. Whilst I accept his explanation of therapeutic techniques used in the therapy, it is my opinion that they combined over time, and particularly during 2012, to erode the appropriate professional boundaries between himself and [the complainant [and, given [the complainant's] diagnosis, were highly likely to cause her to believe that she was entering into a relationship with him that went beyond a doctor-patient relationship.

d. Agreeing to meet with [the complainant] outside the workplace at a restaurant was a breach of professional standards

Opinion as to whether any failings on the part of [B.M.] are serious.

1. Of the above failings noted, I believe the first two contributed significantly to the latter two. I do not believe that inadequate note keeping and the lack of appropriate supervision were necessarily serious but I believe they contributed to the erosion of professional boundaries culminating in [B.M.] agreeing to meet [the complainant] at a restaurant.

2. It is my opinion that this was a serious failing and was an inappropriate act on his part. It appears to have occurred in the context of increasing self-disclosure on his part which is suggested in the texts sent from [the complainant] to [B.M.] around this time. However, this can only be inferred from the texts as no other detail is available.

3. It is my opinion that [B.M.] realised that he had made errors in judgment and took appropriate steps to consult with colleagues and discontinue his relationship with [the complainant] but this was only after the serious failing in judgment set out above. His termination of his relationship with [the complainant] led to entirely foreseeable distress on her part leading to self-harm, hospital admission and further aggravation of her already deep mistrust of psychiatric professionals.’

6 By letter dated 11 July 2016 the applicant was furnished with a copy of Dr. Constable's report. The letter confirmed that the PPC would also be considering a case report, compiled by the case worker, and a copy of this report was enclosed. The letter also detailed steps which could be taken by the PPC, including making a decision in relation to the complaint as to whether there was sufficient cause to warrant further action being taken in relation to the complaint.

7 The applicant responded to this letter on 24 August 2016. The letter stated:

‘According to Dr. Constable's report, his professional opinion is that there were four failings on the part of our client in relation to the care provided to [the complainant], only one of which failings was serious, that being our clients meeting with [the complainant] in a restaurant in July, 2012. In light of the decision of the Supreme Court in Corbally, it is this failing only that can be considered by the PPC as to whether there is sufficient cause to warrant further action being taken in relation to the complaint.’

8 I shall refer to the applicant's meeting with the complainant in a restaurant in 2012 as being the ‘restaurant complaint’. The letter also contested other aspects of the complaint before the PPC.

9 By letter dated 18 November 2016 the applicant was advised that the PPC had decided to refer the complaint to the respondent. He was further advised that he would receive a notice of inquiry setting out the allegations to be made against him. The letter also enclosed a minute of the PPC's meeting which considered the complaint. This minute stated that:

‘[T]he committee carefully considered the case report and all documentation relating to this matter including the independent report of Dr. Giles Constable. Pursuant to s. 63 of the Medical Practitioners Act, 2007, the Committee formed the opinion that there is a prima facie case to warrant further action being taken in relation to the complaint against [B.M.], the matter being sufficiently serious, decided to refer the matter to the Fitness to Practice Committee on the grounds of professional misconduct and poor professional performance.’

10 Before the matter could be considered by the respondent, the complaint was sent to the Chief Executive Officer of the Medical Council (the CEO). The CEO formulated a number of allegations arising from the complaint. These allegations were sent to Dr. Cian Denihan, consultant psychiatrist, on 4 July 2017 for his professional opinion as to whether the allegations, either individually or cumulatively, amounted to professional misconduct and/or poor professional performance. Dr. Denihan reported on 1 August 2017.

11 This report applied the accepted definition of professional misconduct, as set out in The Guide to Professional Conduct and Ethics for Registered Medical Practitioners prepared by the Medical Council:

‘conduct which...