O'Connor v Medical Council

JurisdictionIreland
JudgeFinnegan J.
Judgment Date17 July 2007
Neutral Citation[2007] IEHC 304
CourtHigh Court
Docket NumberRECORD No. 638 Sp/2005
Date17 July 2007

[2007] IEHC 304

THE HIGH COURT

RECORD No. 638 Sp/2005
O'CONNOR v MEDICAL COUNCIL

BETWEEN

HELENA O'CONNOR
APPELLANT

and

THE MEDICAL COUNCIL
RESPONDENT

MEDICAL PRACTITIONERS ACT 1978 S48

MEDICAL PRACTITIONERS ACT 1978 S47

MEDICAL PRACTITIONERS ACT 1978 S47(3)

MEDICAL PRACTITIONERS ACT 1978 S46

MEDICAL PRACTITIONERS ACT 1978 S49

M v MEDICAL COUNCIL 1984 IR 485

CASEY v MEDICAL COUNCI 1999 2 IR 534

MILLETT-JOHNSTON v THE MEDICAL COUNCIL UNREP MORRIS 12.1.2001 2001/15/4322

O'LAOIRE v MEDICAL COUNCIL UNREP KEANE 27.1.1995 2000/21/7913

PROFESSIONS

Medical profession

Fitness to practise - Finding of professional misconduct - Whether facts alleged to constitute misconduct established - Appropriateness of conditions attached to licence to practise medicine - Whether reasonable - Demeanour of applicant - Whether substantial grounds for granting of leave to seek judicial review - Medical Practitioners Act 1978 (No 4), ss 47 and 48 - M v Medical Council [1984] IR 485 applied; Casey v Medical Council [1999] 2 IR 534 considered; Millett-Johnston v Medical Council (Unrep, Morris J, 12/1/2001) approved - Leave refused (2005/638Sp - Finnegan P - 17/7/2007) [2007] IEHC 304

O'Connor v Medical Council

The deceased had lodged a complaint with the Medical Council in relation to his medical treatment. The Medical Council applied a Fitness to Practice Committee for an inquiry into the conduct of the appellant as to professional misconduct, which formed an opinion that professional misconduct existed. Extensive evidence was given as to the treatment.

Held by Finnegan J. that the decision of the Medical Council would be cancelled. Insufficient evidence or findings of fact were adduced to support the validity of the decision. The evidence had to establish findings of fact beyond all reasonable doubt.

Reporter: E.F.

Finnegan J.
1

By letter dated 10th August 2005 Dr. Michael McCarthy, now deceased lodged a complaint with the Medical Council. The circumstances underlying the complaint were that on the 10th April 2000 Dr. McCarthy had a lesion removed from his right elbow under general anaesthetic. The surgical specimen was sent to the Base Laboratory in St. Bricin's Hospital on the 12th April 2003 for histological examination. He complained that a written report was not received by him on the same until the 30th June 2000 and that the same was incorrectly dated 29th April 1999 rather than 2000. On the 9th May 2000 Dr. McCarthy requested the histology slides so that he could obtain a second opinion from another pathologist. The slides were not released to him on request. Dr. McCarthy, a member of the Army Medical Corps holding the rank of Lieutenant Colonel then applied through military channels and at that time it was found that the slides were missing and that the original paraffin block was also missing. The appellant is a pathologist in the Army Medical Corps with the rank of Commandant and was responsible for the histological examination.

2

Arising out of the foregoing the Medical Council applied to the Fitness to Practice Committee for an inquiry into the conduct of the appellant on the grounds of alleged professional misconduct. The Fitness to Practice Committee duly held an inquiry on the 12th September 2005 and found the following facts, set out in the Notice of Intention to Hold an Inquiry, proved -

3

2 "1. That you failed to provide a written histology report either at all or within a reasonable period to Comdt. C. O'Malley, surgeon, on tissue removed from Dr. Michael McCarthy's left elbow on 11th April 2000.

4

2. Failed to provide Dr. McCarthy the relevant histology slide(s) when you were requested to do on one or more occasions by Dr. McCarthy.

5

3. Failed to provide to your superiors the relevant histology slides when you were directed to do so on one or more occasions.

6

4. Failed to ensure that the relevant slides and/or original paraffin block did not go missing from Base Laboratory.

7

5. Failed to show and apply the standards of clinical judgment and competence required by a person in your position.

8

6. Acted in a manner derogatory to the reputation of the medical profession.

9

7. Failed to act in the best interests of Dr. McCarthy."

10

The Fitness to Practice Committee further formed the opinion that the facts so found amount to professional misconduct.

11

The Fitness to Practice Committee recommended to the Medical Council the following sanctions -

12

2 "1. That the appellant be censured in respect of her professional conduct and that conditions be attached to the retention of her name in the Medical Register.

13

2. That she send out written histology reports within a reasonable time which should not ordinarily exceed one month.

14

3. That she make her practice available for inspection by members of the Monitoring Group of the Medical Council.

15

4. That she ensure that she practices within best practice guidelines in pathology in particular to tracking of specimens within and without the laboratory.

16

5. That she familiarise herself with paragraph 3-7 of the Ethical Guide."

17

The Medical Council considered the report of the Fitness to Practice Committee and invoked its powers under the Medical Practitioners Act1978 section 48 and censured the appellant and further invoked its powers under section 47 of the Medical Practitioners Act 1978 and attached the following conditions to the retention of her name in the General Register of Medical Practitioners -

18

2 "1. That you send out written histology reports within a reasonable time which should not ordinarily exceed one month.

19

2. That you engage in appropriate clinical audits on an ongoing basis.

20

3. That you make your practice available for inspection including clinical audits by the Medical Council and/or its representatives.

21

4. That you ensure that you practice within best practice guidelines in pathology in general and in particular to tracking of specimens within and without the laboratory.

22

5. That you familiarise yourself with paragraph 3.7 of a Guide to Ethical Conduct and Behaviour - 6th edition 2004.

23

6. That you provide documentary evidence of continuing medical education/continuing practice development to the Medical Council in line with the requirements of the Faculty of Pathology of the Royal College of Physicians of Ireland.

24

7. That you bear the costs of compliance with these conditions.

8. This to be reviewed in two years."
25

The reason given for the censure and imposition of conditions was that on the facts found by the Fitness to Practice Committee the Committee formed the opinion that the appellant had been guilty of professional misconduct.

26

This matter came before the court pursuant to the provisions of the Medical Practitioners Act1978 section 47(3) which provides as follows -

"47(3) A person to whom a decision under this section relates may, within the period of twenty one days beginning on the date of the decision, apply to the High Court for cancellation of the decision and if he so applies -"

27

a a. the High Court, on the hearing of the application, may either -

i i. cancel the decision, or
28

ii ii. declare that it was proper for the Council to make a decision under this section in relation to such person and (as the court may consider proper) direct the Council to attach such conditions as the Council thinks fit to the retention of the name of such person in any register maintained under this Act."

29

A number of preliminary matters arose on the hearing as to the powers of the Medical Council, the nature of an application to the High Court under section 47 of the Medical Practitioners Act1978 and the powers of the High Court on such an application.

30

The Medical Council's powers of relevance are those under sections 46, 47 and 48 of the Medical Practitioner's Act1978. Section 46 of the Act empowers the Medical Council to decide, following an inquiry by the Fitness to Practice Committee, that the name of a person should be erased from the register or that during a specified period the registration of that person should not have effect: that power arises where the person concerned has been found guilty of professional misconduct following an inquiry by the Fitness to Practice Committee. Section 47 empowers the Medical Council following an inquiry by the Fitness to Practice Committee to attach such conditions as it thinks fit to the retention of the name of a person in the register. In terms, there is no requirement for a finding by the Fitness to Practice Committee of misconduct against that person. Section 48 is in similar terms to section 47 and empowers the Medical Council to advise, admonish or censure a person whose name is entered in the register: again, in terms, there is no requirement for a finding of professional misconduct.

31

In the present case the decision pursuant to section 47 is quite clear - the reason for the Council's decision was that the Fitness to Practice Committee had reported to the Council its opinion that the appellant was guilty of professional misconduct. Again it is clear that the conditions were imposed pursuant to the powers conferred upon the Medical Council by section 47 of the Act and the censure applied pursuant to section 48 of the Act. In these circumstances the dicta of Morris P. inAnachebe v Medical Council, The High Court (unreported) 12th July 2000 have no application that case being one where the Medical Council exercised its powers under section 48 alone. Morris P. there held that where the Medical Council exercises its power under section 48 alone and not in conjunction with any of the powers conferred on it by section 46, 47 or 49 of the Act no right is given to the medical practitioner to apply to the court to...

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