Casey v Medical Council

JurisdictionIreland
CourtHigh Court
Judgment Date04 June 1999
Docket Number[1998 No.508 J.R.]
Date04 June 1999
Casey v. Medical Council
Richard Casey
Applicant
and
Medical Council
Respondent
[1998 No.508 J.R.]

High Court

Medical practitioner - Complaint against practitioner - Inquiry by disciplinary tribunal - No finding of professional misconduct or lack of fitness to practice - Decision by superior tribunal to apply conditions to continued entry in register - Whether decision ultra vires in view of findings of tribunal - Whether application of disciplinary measures by superior tribunal amounted to reversal of finding of no professional misconduct - Medical Practitioners Act, 1978 (No. 4), ss. 45(5), 46(1), 47(1) and 48(1).

Statutory interpretation - Whether disciplinary measures can be applied in absence of finding of professional misconduct or lack of fitness to practice - Whether decision of tribunal on report of disciplinary tribunal can be published in absence of finding of professional misconduct or lack of fitness to practice - Medical Practitioners Act, 1978 (No. 4), ss. 45(5), 47(1), and 48.

Section 45 of the Medical Practitioners Act, 1978, provides that the Medical Council (the "Council") or any person may apply to the Fitness to Practise Committee (the "Committee") for an inquiry into the conduct of a registered medical practitioner on the grounds of his alleged professional misconduct, or his fitness to engage in the practice of medicine by reason of physical or mental disability, and the application shall, be considered by the Committee.

If, after consideration of such application, the Committee is of opinion that there is a prima facie case for holding an inquiry or if it has been given a direction by the Council to hold an inquiry, the Committee shall proceed to do so. On completion of the inquiry the Committee shall make a report to the Council on the nature of the application and the evidence laid before it, and any other matters in relation to the medical practitioner which it may think fit to report including its opinion as to the alleged professional misconduct or his fitness to practice.

It is also provided by this section that the findings of the Committee on any matter referred to it and the decision of the Council shall not be made public without the consent of the practitioner concerned unless he has been found guilty of professional misconduct or unfit to practice because of physical or mental disability.

Section 46 of the Act provides that where a practitioner has been found guilty of misconduct or unfit to practice the Council may decide that the name of such person should be erased from the General Register of Medical Practitioners (the register). A person to whom a decision under this section relates may, within the period of 21 days, apply to the High Court for cancellation of the decision and the High Court may either cancel the decision, or declare that it was proper for the Council to make the decision.

Section 47 provides that following an inquiry and report by the Committee the Council may decide to attach such conditions as it thinks fit to the retention in any register of the name of the practitioner concerned. A person to whom a decision under this section relates may, within a period of 21 days, apply to the High Court for cancellation of the decision and the High Court may either cancel the decision, or, declare that it was proper for the Council to make the decision.

Section 48 provides that the Council, following an inquiry and report by the Committee into the conduct of a person whose name is entered in the register may, if it so thinks fit, advise, admonish or censure such person in relation to his professional conduct.

A complaint was made to the Council by a former patient of the applicant concerning a consultation with the applicant. The applicant was served with a notice of intention of the Committee to hold an inquiry under Part V of the Act of 1978. The hearing took place on two days and the Committee concluded that there was insufficient evidence to find the applicant guilty of professional misconduct on the basis of the criminal standard of proof but the Committee advised that the applicant should avail of continuing medical education and continuing professional development courses in general practice and in his areas of specific interest; that he should keep more comprehensive clinical notes; attend a course in communication skills; and consider using a chaperone when dealing with patients when in doubt.

The Council invited the applicant to attend before a meeting of the Council so as to afford him an opportunity to make a submission before a decision would be made on the report of the Committee. The applicant was represented at the meeting by a solicitor and counsel. It was submitted on the applicant's behalf that he had been cleared of the charge of professional misconduct by the Committee and that consequently the Council had no power to impose sanctions on him; and further that even if the Act did permit the Council to take any steps under ss. 46, 47, and 48, to do so would effectively mean that the Council would be reversing the findings of the Committee.

The Council decided to invoke its powers under s. 47 to attach conditions to the retention of the applicant's name on the register, and under s. 48, to offer him advice regarding his practice.

The applicant did not exercise his right under s. 47(3) to apply to the High Court for the cancellation of the conditions imposed but sought leave from the High Court to apply for a judicial review of the Council's decisions. Leave was granted and the applicant commenced judicial review proceedings

Held by the High Court (Kelly J.), in refusing the reliefs sought, 1, that, once an inquiry had been held and a report made by the Committee, the powers given to the Council under ss. 47 and 48 of the Act of 1978, could be operated irrespective of the precise findings of the inquiry.

2. That neither the attaching of conditions to the retention in the register of the name of a person in such register pursuant to s. 47 nor the exercising by the Council of its power to advise a person whose conduct had been the subject of an inquiry and report by the Committee had the effect of reversing the Committee's finding in favour of the applicant.

3. That a failure on the part of the applicant to comply with the conditions imposed would not give rise to an automatic erasure or suspension from the register of the applicant's name since such a failure would have to be the subject of a separate inquiry.

4. That, if the Court were to take the view that the protection of the public interest required conditions of the type the Council proposed to have attached to the retention of the applicant's name on the register, such imposition would not offend against the provisions of s. 45(5) since it would be the Court that would be imposing the conditions following a hearing.

Cases mentioned in this report:-

In re M., a Doctor [1984] I.R. 479.

M. v. The Medical Council [1984] I.R. 485.

Judicial review.

The facts have been summarised in the headnote and are fully set out in the judgment of Kelly J., infra.

On the 21st December, 1998, the High Court (Geoghegan J.) gave leave to the applicant to apply by way of judicial review for an order of certiorari, and certain other reliefs in respect of decisions taken by the respondent in regard to the applicant.

A notice of motion seeking an order pursuant to Order 84, rr. 18 and 19 of the Rules of the Superior Courts, 1986, was issued by the applicant on the 22nd December, 1998, and a statement of opposition was filed by the respondent on the 8th March, 1999.

The application was heard by the High Court (Kelly J.) on the 19th May, 1999.

Cur. ad. vult.

Kelly J.

4th June, 1999

Introduction

This case raises some important questions concerning the powers of the Medical Council under Part V of the Medical Practitioners Act, 1978. The answers to these questions have implications for every member of the medical profession who may be the subject of an investigation on foot of a complaint of professional misconduct or an allegation of unfitness to practice medicine.

The facts

The applicant is a registered medical practitioner. On the 8th June, 1997, a former patient of his made a complaint to the Medical Council (the "Council") concerning a consultation which she had with him over seven months beforehand. On foot of that complaint the applicant was served with a notice of intention to hold an inquiry under Part V of the Medical Practitioners Act, 1978.

Five allegations of professional misconduct were made against him. It was alleged that he:

"1. failed to show and apply the standards of clinical judgment and competence required of a person in your position;

  • 2. failed to treat your patient with the dignity and respect due to her;

  • 3. failed to communicate adequately or at all with your patient;

  • 4. brought the medical profession into disrepute; and

  • 5. acted in a manner derogatory to the reputation of the medical profession".

These charges were inquired into by the Fitness to Practise Committee (the Committee) of the Council over two days on the 27th May and the 28th October, 1998. It was a sworn inquiry.

In due course the Fitness to Practise Committee gave its report. It reads as follows:-

"Having heard the case, the Committee considered that there was insufficient evidence to find Dr. Casey guilty of professional misconduct on the basis of the criminal standard of proof.

However, the Committee strongly advises Dr. Casey to:-

  • 1. avail of continuing medical education and continuing professional development courses in general practice and in his areas of specific interest;

  • 2. keep more comprehensive clinical notes;

  • 3. attend a course in communication skills which could be advantageous to him in dealing with the problems which arise...

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