Medical Council v Anonymous

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 01 March 2019
• Neutral Citation: [2019] IEHC 109
• Court: High Court
• Date: 01 March 2019

[2019] IEHC 109

THE HIGH COURT

Kelly P.

IN THE MATTER OF INTENDED PROCEEDINGS

AND

IN THE MATTER OF SECTION 71 OF THE MEDICAL PRACTITIONERS ACT 2007

AND

IN THE MATTER OF A REGISTERED MEDICAL PRACTITIONER

BETWEEN

MEDICAL COUNCIL

INTENDED APPLICANT

AND

ANONYMOUS

INTENDED RESPONDENT

Medical practitioner – In camera – Medical Practitioners Act 2007 s. 76 – Intended applicant requesting the High Court to conduct its intended application under s. 76 of the Medical Practitioners Act 2007 in camera – Whether this was a case in which an in camera hearing was warranted

Facts: The intended applicant, the Medical Council, applied to the High Court in anticipation of an application which it would make to the court pursuant to the provisions of s. 76 of the Medical Practitioners Act 2007. The intended application was in respect of a registered medical practitioner who had been the subject of an investigation by the Council’s Fitness to Practise Committee (FTPC). That investigation gave rise to adverse findings against the doctor. The FTPC recommended that the doctor be censured. It also recommended that the doctor’s registration be subject to a series of conditions. The report of the FTPC was, pursuant to s. 69 of the Act, submitted to the Council for its consideration. The Chief Executive Officer of the Council submitted that the sanction recommended by the FTPC was inadequate and that the doctor’s registration as a medical practitioner should be cancelled. The Council did not accept that proposition and decided that the appropriate sanction should be conditional registration. The hearings before the FTPC and the Council were all conducted in private. The Council requested the court to conduct its intended application under s. 76 in camera. It also made a request for “the courts directions in relation to the extent to which the patients who form the subject of findings in this case, can now be appraised (sic) of the fact that findings have now been made in respect of care afforded to them by the intended respondent and the outcome of the inquiry, to include the applicant’s decision on sanction”.

Held by Kelly P that he did not accept that this was a case in which an in camera hearing was warranted. Kelly P held that, although the intended s. 76 application should be heard in open court, it would be subject to restrictions which would ensure the anonymity of the doctor and of the relevant patients.

Kelly P held that if the Council is empowered to advise the public at large of the relevant material then it must follow that it is entitled to do so to a limited constituency of the public.

Application refused.

JUDGMENT of Mr. Justice Kelly , President of the High Court delivered on the 1st day of March, 2019

Introduction

1 This is an unusual application which is made by the Medical Council (‘the Council’) in anticipation of an application which it will be making to the court pursuant to the provisions of s.76 of the Medical Practitioners Act 2007 (‘the Act’).

2 The intended application pursuant to s.76 is in respect of a registered medical practitioner (‘the doctor’) who has been the subject of an investigation by the Council's Fitness to Practise Committee (‘FTPC’). That investigation gave rise to adverse findings against the doctor. The FTPC recommended that the doctor be censured. It also recommended that the doctor's registration be subject to a series of conditions.

3 The report of the FTPC was, pursuant to s.69 of the Act, submitted to the Council for its consideration. The Chief Executive Officer of the Council submitted that the sanction recommended by the FTPC was inadequate and that the doctor's registration as a medical practitioner should be cancelled. The Council did not accept that proposition and decided that the appropriate sanction should be conditional registration.

4 The hearings before the FTPC and the Council were all conducted in private. The Council has requested this court to conduct its intended application under s.76 in camera. It has also made a request for ‘ the courts directions in relation to the extent to which the patients who form the subject of findings in this case, can now be appraised (sic) of the fact that findings have now been made in respect of care afforded to them by the intended respondent and the outcome of the inquiry, to include the applicant's decision on sanction’. None of the patients whose treatment by the doctor was considered by the FTPC were apprised of anything untoward having happened. They know nothing of the FTPC investigation or its findings.

This application

5 This application, made in anticipation of the application under s.76 of the Act, was heard on notice to the doctor who was represented by counsel. That hearing was held in camera but I made it clear that if I did not accede to the application, judgment would be delivered in open court. As I do not accept that this is a case in which an in camera hearing is warranted I am delivering this judgment in open court. For reasons which I will set out, I am of opinion that although the intended s.76 application should be heard in open court it will be subject to restrictions which will ensure the anonymity of the doctor and of the relevant patients. In order to understand how I have come to that conclusion it is necessary that I should set out, in suitably anonymised form, the facts relevant to the application.

Background

6 The events which form the subject matter of the complaints and, ultimately, the inquiry before the FTPC, occurred over a five-year period. During that time the doctor was suffering from an opioid addiction which had its origins in pain relief properly prescribed for him in respect of injuries which he sustained years beforehand. In order to feed his addiction, he was prescribing unnecessary opioids to patients, administering doses to them of part only of the dispensed opioids and administering the remainder to himself.

7 The inquiry in respect of the doctor was held on foot of two separate applications to the FTPC. One application was made by a complainant and the second was doctor's own self referral. The FTPC decided that the inquiry would proceed in private ‘ due to the relevant medical disability of the registrant and the nature of the evidence’.

The FTPC Inquiry

8 Twelve allegations were made against the doctor before the FTPC. No evidence was offered in respect of one of them. The doctor admitted all of the others. The allegations were as follows.

Allegation 1 was that the doctor administered opioids intra-muscularly and/or orally to one or more of 36 named patients on one or more of the dates specified in circumstances where he knew or ought to have known that it was inappropriate and/or not clinically warranted. This allegation was proven as to fact by virtue of the admission of the doctor.

Allegation 2 was that the doctor prescribed to one or more of six named patients on one or more specified dates opioids in excessive quantities and/or strengths.

Allegation 3 arose from allegation 2 and was to the effect that the doctor took some and/or all of the unused vials of opioid medication which were not administered directly to one or more of the patients referred to in allegation 2, for self-administration, in circumstances where the doctor knew or ought to have known that this was inappropriate.

Allegation 4 was not proven as to fact because no evidence was offered in respect of it.

Allegation 5 was that on a specified date in the context of affording care to an identified patient the doctor failed to refer the patient to hospital in circumstances where he knew or ought to have known it was clinically warranted and/or appropriate having administered intravenous antibiotics to the patient.

Allegation 6 was that on one or more occasions during a three-year period the doctor took Tramadol samples from stock or from one or more representatives of pharmaceutical companies for the purpose of self-administering that medication in circumstances where he knew or ought to have known that this was inappropriate.

Allegation 7 was that on one or more occasions during a specified period he obtained and/or took Tramadol and/or Cyclimorph pursuant to one or more stock practice prescriptions and/or from practice stock supplies for the purpose of self-administering in circumstances where he knew or ought to have known that this was inappropriate.

Allegation 8 was that on one or more occasions during a specified period he obtained and/or took Pethidine and/or morphine sulphate, pursuant to one or more stock practice prescriptions and/or from practice stock supplies for the purposes of self-administering in circumstances where he knew or ought to have known that this was inappropriate.

Allegation 9 was that on a specified date he prescribed 10 vials of Cyclimorph for an identified patient and presented that prescription to a named pharmacy to be dispensed in circumstances where the doctor knew or ought to have known this was inappropriate.

Allegation 10 was that on one or more occasions during a specified period the doctor self-administered opioid medication including but not limited to morphine sulphate in circumstances where he knew or ought to have known that was inappropriate.

Allegation 11 was that on one or more occasions during a specified period he engaged in the practice of medicine while under the influence of opioid medication in circumstances where he knew or ought to have known that was inappropriate.

Allegation 12 was that the doctor suffered from an opiate addiction and/or a mixed anxiety and/or depressive state which may impair ability to practise medicine or a particular aspect thereof.

9 The FTPC found the doctor guilty of:-

(a) failing to meet the standards of competence that can reasonably be expected of a general practitioner,

(b) engaging in conduct connected with the profession in...