O'Laoire v Medical Council
| Jurisdiction | Ireland |
| Judge | Keane J, |
| Judgment Date | 27 January 1995 |
| Neutral Citation | 2000 WJSC-HC 7913 |
| Docket Number | 1993 No 5525P |
| Court | High Court |
| Date | 27 January 1995 |
BETWEEN
AND
2000 WJSC-HC 7913
THE HIGH COURT
Subject Headings:
*
JUDGMENT delivered the 27th day of January, 1995 by Keane J, (full version).
I INTRODUCTION
II THE FACTUAL BACKGROUND
(i) The profession of neurosurgery in Ireland and the United Kingdom
(ii) Beaumont Hospital
(iii) The O'Neill inquiry
(iv) The "G.D." case and its sequel
(v) Mr. O'Laoire's letter and the establishment of the inquiry
III THE APPLICABLE LAW
(1) The Medical Practitioners Act, 1978
2 (2)The meaning of "professional misconduct"
(3) The standard of proof
(4) The question of motive and intention
(5) The Constitution and Qualified Privilege
IV THE ISSUES OF FACT
(i) Inquiry No. 1
(a) the "A.B." case
(b) the "G.D." case
(c) the "M.O'D." case
(ii) Inquiry No. 2
(a) Mr. O' Laoire's letter
(b) the "Cases of Concern"
(1) The "M.McC." case
(2) The "I.M." case
(3) The "B.T." case
(4) The "D.H." case
(5) The "S.L." case
(iii) Medical Ethics
V CONCLUSIONS
(i) Inquiry No. 1
(a) the "A.B." case
(b) the "G.D." case
(c) the "M.O'D." case
(ii) Inquiry No. 2
a (A)
(1) The "M.McC." case
(2) The "I.M." case
(3) The "B.T." case
(4) The "D.H." case
(5) The "S.L." case
b (B) General
The National Centre of Neurosurgery in Beaumont Hospital which opened in 1987 was described by one of the witnesses in this case as being the best equipped centre of its kind in these islands. No one has disagreed with that assessment: some witnesses indeed went further and said that it was one of the best of its kind in Europe. It is tragic that the opening years in the history of the centre, staffed as it was by highly skilled and dedicated specialists, have been marred by a bitter and protracted internecine controversy, of which this litigation is the latest stage.
The proceedings are in form an application brought by way of special summons by a consultant neurosurgeon, Mr. Sean Antoine O'Laoire (hereafter "Mr. O'Laoire") for an order cancelling certain decisions made in respect of him by the Respondent, the Medical Council (hereafter "the Council").
The decisions in question were that Mr. O'Laoire should be suspended from practice as a neurosurgeon for a specified period because of what were found by the Fitness to Practice Committee of the Council to be acts or omissions constituting professional misconduct on his part.
The application was at hearing for sixty days and much of the evidence was of a highly technical nature. The result is a judgment which is necessarily lengthy. To make it easier to follow, however, I have divided it into a number of sections. The first sets out the factual background to the application. The second sets out the applicable principles of law. The third considers in more detail the issues of fact which emerged during the hearing. In the final section, I set out my conclusions.
The profession of neurosurgery is concerned with disorders of the nervous system of the human body. In common with other branches of medicine, there have been remarkable advances over recent decades in the skills and techniques available to those who practice in this area. While neurosurgeons are constantly involved in the management of patients suffering from spinal injuries and disorders of various kinds, they also necessarily concern themselves with the brain and it is principally in relation to conditions in that area that the many controversies in this case have arisen.
Of the advances to which I have referred, perhaps the most important and also, viewed from the lay perspective, the most spectacular has been the development of microscopic neurosurgery. Before that technique was introduced in Ireland in the 1970's, the surgeon operating on the brain did so with a lens placed into spectacles which gave a limited degree of magnification. The operating microscope allows a significantly higher level of magnification and gives a much better light by which the surgeon can operate. There have, however, also been major advances in the operating tools of the surgeon: the traditional scalpel has been supplemented, if not replaced entirely, by a range of other equipment, again one of the most spectacular, from the lay perspective, being the use of laser beams.
As in every branch of medicine, the diagnosis by neurosurgeon of the precise nature of the condition with which he has to deal is clearly of the highest importance. Again, in this area the conventional X-ray has been supplemented by significantly more sophisticated techniques, initially, the CT scan and, latterly, the MRI scan. But while these advanced techniques are of critical importance to the surgeon in establishing the nature of the condition with which he has to deal, they may have to be supplemented by the use of other diagnostic aids. In the case of tumours or growths of tissue which develop either in the brain itself or between the brain and the skull, the radiological imaging just mentioned may not give a sufficiently definitive indication as to the nature of the tumour and, specifically, whether it is benign or malignant. The distinction is so critical as hardly to require emphasis: should the tumour be malignant, it will probably invade surrounding areas and eventually fatally affect the vital functions which are controlled from the brain.
In order to determine the histology of the tumour - i.e., its precise biological structure - a biopsy may be performed. In its conventional form, this latter procedure involves the removal by a needle of a small portion of the tumour which is then subjected to microscopic examination and analysis in the laboratory by a pathologist. However, some tumours are situated so deep in the brain structures that they cannot be reached by conventional biopsy. Another technique has been developed to assist surgeons in this area, i.e., stereotactic biopsy. This is carried out with the aid of a computer and enables a needle to reach the remotely located tumours and to remove a fragment sufficient for microscopic examination and dissection. While it is recognised as being an important additional weapon in the surgeon's armoury, it also has two drawbacks. First, because of the depth to which the needle has to reach it carries some degree of risk of damage being caused to what are particularly sensitive areas of the brain which control important functions. Secondly, because the tumours are not always homogeneous, the sample removed may not necessarily be typical of the tumour as a whole.
Two important adjuncts to the neurosurgeon's therapeutic role and involving other specialities should be mentioned at this point. It is accepted that the ideal form of treatment for a tumour of any sort is its total excision or removal by an operation. If that is achieved in the case of a benign tumour, then the prognosis for the patient is relatively good. However, in the case of a malign tumour, a total excision is frequently - perhaps invariably in the case of some tumours - followed by a regrowth of the tumour. In addition, for a variety of reasons, it may not be possible to effect a total removal and in that case the first of the adjuncts referred to may be employed in the form of radio therapy carried out by a radiotherapist with a view to removing the residual tumour. Alternatively, radio therapy may be used prior to, or as an alternative to, surgical intervention. The second adjunct is chemotherapy i.e., the use of drugs under the supervision of an oncologist to reduce or eliminate a tumour. As is well known, both these techniques, while of great importance in the treatment of tumours, are frequently distressing for the patient and cause side effects which can be extremely unpleasant.
I have mentioned the distinction between two forms of tumour. Those which grow within the brain itself and are usually called gliomas, because they arise from glial tissue, the supporting tissue of the brain, present the neurosurgeon with specific problems. One witness likened the situation to the effect that would be achieved by introducing a blob of red paint into a bowl of white paint. This produces a blob of red which represents the tumour and, between the red and the white, a zone of pink. The pink represents the merging of tumour with the brain and it is this area that the surgeon cannot remove with safety. By contrast, tumours outside the brain area itself are more easily removed by the surgeon without the risk of damaging sensitive surrounding areas.
Some major features of the brain to which I will frequently have to refer in the course of this judgment should now be mentioned. The many distinguished surgeons who gave evidence on these matters will, I am sure, understand that my description of them is intended to be read by lay people as well as medical people and is accordingly, by their standards, necessarily crude and simplistic.
The brain itself, of course, is situated inside the skull which in turn has the skin covering which we call the scalp. Between the brain and the bony wall of the skull there is an area called"the meninges"which includes a water tight membrane known as the dura. This must, of course, be opened by the surgeon if he is seeking to remove a tumour which is located inside the brain. The other layer below it is called the arachnoid and beneath that again there is the area known as the subarachnoid space. Between...
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