McManus -v- The fitness to practise Committe of the Medical Council & Anor, 2012 IEHC 350 (2012)

Docket Number:2011 562 JR
Party Name:McManus, The fitness to practise Committe of the Medical Council & Anor
Judge:Kearns P.
 
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THE HIGH COURTJUDICIAL REVIEW[2011 No. 562 JR]BETWEENSAMUEL MCMANUSAPPLICANTANDTHE FITNESS TO PRACTISE COMMITTEE OF THE MEDICAL COUNCILANDTHE MEDICAL COUNCILRESPONDENTSJUDGMENT of Kearns P. delivered on the 14th day of August, 2012This is an application for judicial review arising from an inquiry conducted by the first named respondent into the conduct of the applicant pursuant to the Medical Practitioners Act 2007. The applicant had been served with a Notice of Inquiry dated 9th June, 2010 setting out seven allegations against him and indicating the witnesses who would be called at the hearing which took place on 8th October, 2010 and on 10th and 11th days of March, 2011. One of those witnesses was to be Dr. Siobhan Barry, a psychiatrist, who it was proposed to call as an expert witness on the matters in issue.The first respondent committee is constituted pursuant to s. 20 (2) of the Medical Practitioners Act 2007 for the purposes of enquiring into the conduct of registered medical practitioners. At the time of his alleged professional misconduct, the applicant was working (as part of his general practice training) as a senior house officer (SHO) in psychiatry at the Mater Hospital in Dublin. On the evening of 12th April, 2008, an African national, K.W., attempted suicide by throwing himself into the Liffey. He was admitted the following morning to the St. Aloysius Ward of the Mater Hospital by the applicant where later that afternoon he again attempted to commit suicide. On this occasion the mode of attempted suicide was hanging by use of his shoe laces from a shower rail. While that suicide attempt was interrupted, the patient never regained consciousness and died on 28th April, 2008.Prior to the suicide attempt, the applicant made various clinical notes including notes which stated:-"... current suicidal ideation.IMP. High suicide risk ..."Later that day, after the suicide attempt, the applicant altered these notes with a pen using different ink in a clearly visible manner. He altered them so that they then read:-"Denies current suicidal ideation ...IMP. High suicide risk attempt"When this alteration to the medical records became known, the applicant was the subject matter of a complaint by Professor Patricia Casey to the Medical Council. The facts were not in dispute and the essential issue for the committee to consider was whether the facts amounted to professional misconduct. The Medical Practitioners Act 2007 requires that the first respondent must have a majority of non­ medical members. The members of the first respondent committee in the present case were Dr. Deirdre Madden (Chairperson and lay member), Dr. Abdul Bulbulia (registered medical practitioner member) and Stephen Kealy (lay member). The legal assessor to the first respondent was Mr. Kevin Cross S.C. (as he was then).The following allegations of professional misconduct were made against the applicant; that he:-(i) made retrospective additions and/or amendments to patient K.W.'s medical records which he knew or ought to have known was inappropriate in the circumstances; and/or(ii) failed to identify one or more additions and/or amendments to patient K.W.'s medical records as retrospective additions and/or amendments which he knew or ought to have known was inappropriate in the circumstances; and/or(iii) failed to record the date and time of the retrospective additions and/or amendments to patient K.W.'s medical records, which he knew or ought to have known was inappropriate in the circumstances; and/or(iv) altered patient K.W.'s medical records so as to significantly change the meaning of patient K.W.'s medical records; and/or(v) failed to bring to the attention of the consultant in charge any of the retrospective additions and/or amendments to patient K.W.'s medical records; and/or(vi) failed to take any or any adequate steps arising from his concern that patient K.W. had suicidal ideations and/or was a suicide risk; and/or(vii) fell seriously short of the standards expected from a senior house officer in respect of the totality of the treatment afforded by him to patient K.W.The Committee heard evidence from seven witnesses, including the two other doctors involved in the patient's care, Dr. F. Jabber and Prof. Casey, four nurses and the expert witness, Dr. Siobhan Barry, whose report had been furnished in advance to the applicant's legal advisors. Furthermore, the Committee had available to it certain documentary material including the observations and comments furnished to the Preliminary Proceedings Committee (the second respondent's complaints screening committee) on 22nd April, 2010. In those observations and comments, the applicant himself stated, inter alia that:-"My intention was to go to the ward after I had finished assessing the other referrals in the A & E Department and complete K.W.'s notes in full. However, before I could do that I was called by the ward and was told that he had been found hanging in a shower cubicle on the ward. I went directly to the ward where I found the on-call medical team attempting to resuscitate K.W. and I phoned Prof. Casey to inform her of the situation.On review of my notes at this stage I realised they did not accurately reflect my opinion of the patient on his admission, nor did they contain my plan for the patient once he had reached the ward and I accept that I amended the notes retrospectively at this stage.I realise that I should not have amended the notes in this way and that I should have made a clearly marked retrospective note confirming the actual time and context in which it was made."At the opening of the Inquiry the applicant specifically admitted the facts of allegation (1) and, in particular, that he ought to have known that it was inappropriate to make retrospective additions and/or amendments to the records. His counsel stated that:-"Dr. McManus has accepted at all times that he did make retrospective additions and amendments to K.W.'s records and he admits that he should not have done so. What is denied is that this would constitute misconduct..."At the hearing, the applicant himself did not give evidence to amplify or further explain the admissions made both by him and on his behalf. At the conclusion of the Inquiry, the Fitness to Practise Committee found that the applicant was guilty of professional misconduct in respect of five of the allegations.In respect of the finding of professional misconduct in relation to the first allegation, the Committee stated that it was of the opinion that the making of additions and/or amendments to patient K.W.'s medical records subsequent to K.W.'s suicide attempt retrospectively changed the original formulation on which the treatment plan for W. was constructed and, in the circumstances of this case, represented a serious falling short of the standards expected of doctors.In relation to the second allegation, the same was also found to have been proven in that the applicant failed to identify one or more additions and/or amendments to K.W.'s medical records as retrospective additions and/or amendments which he knew or ought to have known were inappropriate in the circumstances. The Committee was of the view that in the circumstances of the case the failure on the applicant's part to clearly identify the additions as retrospective represented a serious falling short of the standards expected of medical practitioners.The third allegation was also found to have been proven, namely, that he failed to record the date and time of the retrospective additions and in this regard the Committee gave as its view that the failure to do so in the circumstances of the case represented a serious falling short of the standards expected of medical practitioners.The fourth allegation was also found to have been proven and the reason given for this finding as to fact was that, by his own written admission, the applicant made the additions and/or amendments to the records as they did not accurately reflect his opinion of the patient. The Committee was of the opinion that the significance or otherwise of the alteration and the circumstances of this case was not a matter of clinical expertise to be dealt with exclusively by the evidence of Dr. Barry. The Committee took into account the evidence of Prof. Casey and Nurse Fowler in reaching the conclusion that the records were altered so as to significantly change their meaning. The Committee thus concluded that in the circumstances of this case, this represented a serious falling short of the standards expected of medical practitioners.No finding of misconduct was made in respect of allegation (5) and allegation (6) was not proven as to fact.Finally, allegation (7) was found proven as to fact, namely, that the applicant had fallen seriously short...

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