McManus v The fitness to practise Committe of the Medical Council and Another

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 14 August 2012
• Neutral Citation: [2012] IEHC 350
• Court: High Court
• Date: 14 August 2012

McManus v Fitness to Practice Committee of the Medical Council & Medical Council

JUDICIAL REVIEW

BETWEEN

SAMUEL McMANUS

APPLICANT

AND

THE FITNESS TO PRACTISE COMMITTEE OF THE MEDICAL COUNCIL

AND

THE MEDICAL COUNCIL

RESPONDENTS

[2012] IEHC 350

[No. 562 JR/2011]

THE HIGH COURT

Medical profession - Medical Practitioner - Discipline - Alleged misconduct - Investigating committee finding elements of misconduct established - Judicial review sought of decision and sanction

Facts: The applicant was a medical practitioner working as a senior house officer at the Mater Hospital in Dublin. Amongst his patients was KW, admitted after having attempted suicide the night before. After admission, KW again attempted suicide which regrettably led to his death some weeks later. The applicant's notes on KW were later found to have been retrospectively altered after KW's second suicide attempt.

The matter was passed to the first respondent, who found that a number of allegations of misconduct in respect of the alteration were proved. The matter was then referred to the second respondent who recommended the form of sanction to be applied. The applicant now sought judicial review of both matters, claiming that the respondents had wrongly and irrationally concluded that there was a case to answer, had failed to ensure the procedures used were fair and had failed to give reasons for failing to follow the advice of the relevant legal assessor.

Held by Kearns P, that the applicant effectively sought to appeal on the basis of insufficient evidence, rather than seeking judicial review in the true sense. Having considered the evidence, the Court was satisfied that sufficient reasons had been advanced for the applicant to understand the matter, and that there was no obligation to substantially explain the refusal to accept the legal assessor's advice as to the evidence.

The Court however considered that the manner in which the views of the expert called by the first respondent were disregarded, as well as the way the evidence of the complainant in the manner was treated, were sufficient to disadvantage the applicant. As such, relief would be granted. In re Haughey [1971] IR 217 considered.

MEDICAL PRACTITIONERS ACT 2007 S20(2)

MEDICAL PRACTITIONERS ACT 2007 S71(A)

R v GALBRAITH 1981 1 WLR 1039 1981 2 AER 1060 1981 73 CAR 124

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

R (MAHFOUZ) v PROFESSIONAL CONDUCT COMMITTEE OF THE GENERAL MEDICAL COUNCIL 80 BMLR 113 2004 AER (D) 114 (MAR) 2004 EWCA CIV 233

KEEGAN & LYSAGHT, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642 1987 ILRM 202

O'KEEFFE v BORD PLEANALA & O'BRIEN 1993 1 IR 39 1992 ILRM 237

MEADOWS v MIN FOR JUSTICE & ORS 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3

PHILP v RYAN & ORS 2004 4 IR 241 2004/42/9677 2004 IESC 105

PRENDIVILLE & MURPHY v MEDICAL COUNCIL & ORS 2008 3 IR 122 2007/51/10911 2007 IEHC 427

BRENNAN v BORD ALTRANAIS UNREP DUNNE 20.5.2010 2010/5/1034 2010 IEHC 193

SIVARAJAH v GENERAL MEDICAL COUNCIL 1964 1 WLR 112 1964 1 AER 504

GOPAKUMAR v GENERAL MEDICAL COUNCIL 101 BMLR 121 2008 AER (D) 113 (APR) 2008 EWCA CIV 309

HAUGHEY, IN RE 1971 IR 217

1 JUDGMENT of Kearns P. delivered on the 14th day of August, 2012

2 This 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 9 ^th June, 2010 setting out seven allegations against him and indicating the witnesses who would be called at the hearing which took place on 8 ^th October, 2010 and on 10 ^th and 11 ^th 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.

3 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 12 ^th 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 28 ^th April, 2008.

4 Prior to the suicide attempt, the applicant made various clinical notes including notes which stated:-

"… current suicidal ideation."

5 IMP. High suicide risk …"

6 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 …"

7 IMP. suicide attempt"

8 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).

9 The following allegations of professional misconduct were made against the applicant; that he:-

10 (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

11 (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

12 (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

13 (iv) altered patient K.W.'s medical records so as to significantly change the meaning of patient K.W.'s medical records; and/or

14 (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

15 (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

16 (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.

17 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 22 ^nd 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."

18 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.

19 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."

20 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…"

21 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.

22 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...