Hermann v Medical Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 23 November 2010
• Neutral Citation: [2010] IEHC 414
• Docket Number: No. 434SP/2010
• Court: High Court
• Date: 23 November 2010

Hermann v Medical Council

BETWEEN

IN THE MATTER OF THE MEDICAL PRACTITIONERS ACT 2007

AND

IN PARTICULAR THE MATTER OF SECTION 75(1) OF THE MEDICAL PRACTITIONERS ACT 2007

BETWEEN

ANDREA HERMANN

APPELLANT

AND

MEDICAL COUNCIL

RESPONDENT

[2010] IEHC 414

No. 434SP/2010

THE HIGH COURT

PROFESSIONS

Disciplinary proceedings

Medical practitioner - Misconduct - Sanction - Appeal - Appropriateness of sanction - Suspension from practice for one year - Period of retraining for three years - Extent of court's jurisdiction to vary sanction imposed - Onus of proof - Test for sanction - Category, gravity, type and severity of penalty - Guidelines from previous sanctions - Consistency of appropriate sanction - Conduct underpinning sanction - Reasoning of Medical Council in arriving at decision - Experience of Medical Council in imposing sanctions - Whether level of sanction justified by material before Medical Council - Whether specific reason for altering sanction presented on appeal - Whether penalty imposed disproportionate - Expertise and experience of Council - Whether rehabilitative measures proposed sensible - In re M, a Doctor [1984] IR 479; Medical Council v Murphy , (Unrep, Finlay P, 29/6/1994) and Marinovich v General Medical Council [2002] UKPC 36 considered - Medical Practitioners Act 2007 (No 25), ss 71, 72 73 & 75 - Appeal dismissed save that one condition changed due to error (2010/434SP - Charleton J - 23/11/2010) [2010] IEHC 414

Hermann v Medical Council

MEDICAL PRACTITIONERS ACT 2007 S75

MEDICAL PRACTITIONERS ACT 2007 S75(1)

MEDICAL PRACTITIONERS ACT 2007 S73

MEDICAL PRACTITIONERS ACT 2007 PART 9

MEDICAL PRACTITIONERS ACT 2007 S71

MEDICAL PRACTITIONERS ACT 2007 S72

M, IN RE 1984 IR 479

MEDICAL COUNCIL v MURPHY UNREP FINLAY 29.6.84 1984/7/2549

MEDICAL PRACTITIONERS ACT 2007 S82

MEDICAL PRACTITIONERS ACT 2007 S71(G)

MEDICAL PRACTITIONERS ACT 2007 S45

MEDICAL PRACTITIONERS ACT 2007 S51

MEDICAL PRACTITIONERS ACT 2007 S67

MEDICAL PRACTITIONERS ACT 2007 S2

MEDICAL PRACTITIONERS ACT 2007 S57(1)

MARINOVICH v GENERAL MEDICAL COUNCIL 2002 UKPC 36

MEDICAL PRACTITIONERS ACT 2007 S71(E)

MEDICAL PRACTITIONERS ACT 2007 71(C)

Mr. Justice Charleton

1 On the 1^st June 2010, Dr Andrea Hermann, the appellant, had three findings of professional misconduct made against her by the Medical Council. Under s.75 of the Medical Practitioners Act 2007 ("the Act of 2007"), a registered medical practitioner against whom a sanction is imposed is entitled to appeal that decision, either as to a finding or as to the appropriateness of the sanction, or both, to the High Court. The appellant has appealed sanction only. The Medical Council suspended the appellant from practice for one year and, among other requirements ordered that she undergo a period of retraining for three years following that. Section 73 empowers the Court, on hearing this kind of appeal, to confirm the decision; to cancel and replace it with such other decision as the Court considers appropriate; to impose a different sanction; or to impose no sanction.

2 I turn first to the authorities as to how the Court should approach an appeal as to sanction alone before referring to the facts of this case and giving a decision on this appeal.

3 The power of the Medical Council to impose sanctions on registered medical practitioners is set out in Part 9 of the Medical Practitioners Act 2007. In particular, ss. 71 and 72 comprehensively provide the relevant powers:-

4 2 "71.Subject tosections 57 (6)(a) and 72, the Council shall, as soon as is practicable after receiving and considering the report referred to in section 69 (1) of the Fitness to Practise Committee in relation to a complaint concerning a registered medical practitioner where section

5 70 (b) is applicable, decide that one or more than one of the following sanctions be imposed on the practitioner:

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

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

8 c (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;

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

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

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

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

12 3 "72.(1) The Council shall, on deciding undersection 71 to impose a sanction referred to in section 71 (b), (c), (d), (e) or (g) on a registered medical practitioner, specify

13 a (a) in the case of a sanction referred to in section 71 (b), the amount of the fine imposed on the practitioner,

14 b (b) in the case of a sanction referred to in section 71 (c), the nature of the conditions to be attached to the practitioner's registration,

15 c (c) in the case of a sanction referred to in section 71 (d), the division of the register to which the practitioner's registration is to be transferred,

16 d (d) in the case of a sanction referred to in section 71 (e), the period of suspension of the practitioner's registration,

17 e (e) in the case of a sanction referred to in section 71 (g), the period for which the practitioner is prohibited from applying for the restoration of the practitioner's registration.

18 (2) The Council shall not decide undersection 71 to impose the sanction referred to in section 71 (f) on a registered medical practitioner on the grounds of a conviction for an offence referred to in section 57 (1)(g) unless-

19 a (a) in the Council's opinion, the nature of the offence or the circumstances in which it was committed render the practitioner unfit to continue to practise medicine, or

20 b (b) a conviction for such offence would render a person unable to be registered under this Act."

21 4. The onus of proof in this appeal remains on the Medical Council. This is notwithstanding the fact that the subject of the sanctions, Dr. Hermann, is the appellant. In re M., a Doctor [1984] I.R. 479, Finlay P. stated at pp. 483 to 484:-

"Upon the making by a practitioner of an application to the High Court under either s. 46 or 47 to cancel a decision the Council, the onus of proving the alleged misconduct of the practitioner rests on the Council as does the onus of establishing that the decision made by the Council with regard to the appropriate penalty is correct. Notwithstanding the use of the expression "cancel the decision", in ss. 46 and 47, I am satisfied that the procedure does not constitute a mere appeal for the combined decisions of the Committee of the Council but is an entire trial of the issues involved… [T]he Council must present to the Court such evidence as it may see fit in order to discharge the onus which is upon it, first, to establish the facts which it alleges prove the misconduct, secondly, to establish that such facts do constitute misconduct and, thirdly, to support the decision it has made. The applicant is entitled to present such evidence on all these topics as he shall see fit. The Court must then, it seems to me, proceed to reach a conclusion as to whether professional misconduct has been proved."

22 5. The Medical Council have confined their submissions in this case to the text of the written decision imposing the sanctions that are in issue. No evidence has been called on their side. In addition, they have made brief references in written submissions, and in the course of oral submissions, to the transcript underpinning that decision. The appellant has engaged in a similar exercise, but also called two witness in addition to her own testimony. It was made clear at the outset of the hearing, however, that the appellant does not dispute the findings made against her.

23 6. The issue as to the appropriate approach by the court to the sanction was considered by Finlay P. in The Medical Council v. Dr. Michael Murphy, (High Court, Unreported 29^th June 1994 Finlay P.). At p. 5 of that unreported judgment, he elucidated four useful principles that are applicable in cases which require a relatively severe penalty. That analysis is appropriate to this case and can usefully be regarded as of more general application:-

"First, I have to have regard to the element of making it clear by the order [made by the High Court on appeal] to the medical practitioner concerned, the serious view taken of the extent and nature of his misconduct, so as to declare him from being likely, on resuming practice to be guilty or like or similar misconduct. Secondly, it seems to me be an ingredient though not necessarily the only one that the order should point out to other members of the medical profession the gravity of the offence of professional misconduct and thirdly, and this must be some extent material to all these considerations, there is the a specific element of the protection of the public which arises where there is misconduct and which is, what I might describe as the standard in the practice of medicine. I have as well an obligation to assist the medical practitioner with as much leniency as possible in the circumstances."

24 7. This statement, made under the predecessor of the current legislation, continues to be correct as it accords with the principles set out in the Act of 2007. It is clear in terms of s. 71 that having inquired into a complaint against a doctor, the Medical Council, in considering the report of the Fitness to Practice Committee charged with that task, is entitled to grade its response on a basis akin to sentencing in criminal cases. In some instances of professional misconduct, all that may be required is advice or admonishment. At the next...