Medical Council v Lohan-Mannion

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 23 June 2017
• Neutral Citation: [2017] IEHC 401
• Docket Number: [2017 No. 68SP]
• Court: High Court
• Date: 23 June 2017

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

AND IN THE MATTER OF A REGISTERED MEDICAL PRACTITIONER

AND ON THE APPLICATION OF THE MEDICAL COUNCIL

BETWEEN

MEDICAL COUNCIL

APPLICANT

AND

DEIRDRE NOELE MARY LOHAN-MANNION

RESPONDENT

[2017] IEHC 401

Kelly P.

[2017 No. 68SP]

THE HIGH COURT

Health – Medical Negligence – s.75 and 76 of Medical Practitioners Act 2007 – Standard of Care – Professional Misconduct – Public good – Cancellation of Registration – Medical Council Decision – Sanction – Power of Court.

Facts: Following the recommendation from the FTPC, the applicant followed the recommendation stating that based on the findings; the sanction had been fair and proportionate. In the event that no appeal had been taken u/s 75 of the Act by the respondent against the impugned decision of the applicant, the applicant now sought confirmation of the impugned order u/s 76 of the Act. The issue arose as to whether the sanction recommended had been adequate and whether the protection of the public had been appropriately addressed by the respondent.

Mr. Justice Kelly held that the application would be granted. The Court held that procedural impropriety or failure to observe the standards of natural and constitutional justice had not been proved. The Court found that the applicant had adequately addressed the obligations and that the decision had been reasonable. The Court confirmed the decision of the applicant.

JUDGMENT of Mr. Justice Kelly , President of the High Court delivered on the 23rd day of June, 2017

Background

1 On 22nd September, 2014 Mr. Frank Cowan, a 46 year old married man with two young children underwent an elective surgical procedure at the Santry Sports Clinic in Dublin. A cervical decompression and discectomy was performed with a view to relieving chronic neck problems which had not responded to non-surgical treatment.

2 Unfortunately, Mr. Cowan, during the course of the surgery, sustained a catastrophic hypoxic brain injury which has left him completely dependent, tube fed, and with no possibility of any meaningful recovery. Mr. Cowan's general practitioner was greatly troubled at what had happened to his patient. He was also the general practitioner to Mrs. Cowan (whom he described as ‘devastated’) and the couple's two children. He made a complaint to the Medical Council on his understanding that there were ‘ a number of anaesthetic issues which do not appear to have been managed in an appropriate clinical manner’. In the course of his complaint he made it clear that the surgical management of Mr. Cowan was exemplary. He took a very different view of the anaesthetic management and expressed his belief that the professional standards of the anaesthetist in question fell below those expected of a consultant anaesthetist. The anaesthetist in question is the respondent to these proceedings.

3 The general practitioner made it clear that he did not make the complaint lightly but felt he had no other option but to do so in the best interests of his patient and also in respect of other patients who might undergo anaesthesia by the respondent.

4 Following receipt of the complaint, the applicant's Preliminary Proceedings Committee formed the opinion that there was a prima facie case to warrant further action being taken against the respondent in respect of the complaint. The matter was referred to the Fitness to Practise Committee (FTPC) of the applicant on the grounds of alleged professional misconduct and poor professional performance on the part of the respondent.

The FTPC

5 An inquiry under Part VII of the Medical Practitioners Act 2007 (‘the Act’) was conducted by the FTPC on 7th and 8th of November, 2016. The respondent was present and was legally represented.

6 The respondent faced nine different allegations arising from the anaesthetic care which she gave to Mr. Cowan. Two of the allegations were withdrawn and the respondent made admissions in respect of the remaining seven. In respect of allegations 1, 4, 5, 8 and 9 she admitted them and that they amounted to poor professional performance. In respect of allegations 2 and 7 she admitted them and that they amounted to professional misconduct. The FTPC had before it a good deal of documentary material including a report from Dr. Anna Maria Rollin, a Consultant Anaesthetist from the United Kingdom who provided a detailed report and also gave oral evidence before the Committee.

Findings of the FTPC

7 The Committee dealt with the following nine allegations.

Allegation 1

‘In the context of affording anaesthetic care to your patient, Mr. Frank Cowan (‘the patient’), who was undergoing surgery at the Sports Surgery Clinic, Santry, Dublin (‘the clinic’) on or about 22nd September, 2014:

(1) In circumstances where:

(a) the blood pressure monitor indicated that the patient's blood pressure was low; and/or

(b) the blood pressure monitor did not display a blood pressure reading; and/or

(c) the blood pressure monitor issued warning messages such as “long inflation time” and/or “weak pulsation”; and/or

(d) the blood pressure monitor alarm sounded,

You failed, on one or more occasions, to take any or any adequate steps, during the course of the surgery, to include, but not limited to, one or more of the following:

(i) requesting the operating surgeon, Mr. Kelleher, to step back from the operating table and then re-checking the blood pressure; and /or

(ii) changing, within an adequate timeframe or at all,

(a) the position of the cuff connected to the monitor; and or

(b) the cuff itself or the monitor itself; and/or

(iii) taking the patient's pulse manually; and/or

(iv) ensuring that you had a continuous and reliable source of measurement of the patient's blood pressure; and/or

(v) informing the operating surgeon, Mr. Kelleher, within an adequate timeframe that you were experiencing difficulties in measuring the patient's blood pressure;’

The FTPC found this allegation proved as to fact having regard to the admissions made by the respondent. It also found that the allegation amounted to poor professional performance. It came to that conclusion having regard to the admissions made by the respondent and the evidence of Dr. Rollin.

Allegation 2

‘Absented yourself, on one or more occasions, from the theatre during the said surgical procedure, at all but especially, in the circumstances set out at allegations 1(a) and/or 1(b) and/or 1(c) and/or 1(d).’

This allegation was held to be proven as to fact having regard to the admissions made by the respondent. It was also found that it amounted to professional misconduct on the part of the respondent having regard to her admissions and the unchallenged evidence of Dr. Rollin.

Allegation 3 was not proceeded with.

Allegation 4 was as follows.

‘Failed to record in the anaesthetic chart:

(a) the lower blood pressure readings that appeared on the blood pressure monitor; and /or

(b) the blood pressure monitor having failed to display blood pressure readings.’

This allegation was proven as to fact and it was held that it amounted to poor professional performance. These findings were again made on the admissions made by the respondent and the unchallenged evidence of Dr. Rollin.

Allegation 5 was that the respondent:

‘Made entries in the patients anaesthetic chart of one or more blood pressure readings in respect of which:

(a) you had no accurate measurement; and/or

(b) were inconsistent with the readings that had been displayed on the blood pressure monitor’.

This allegation was also proven as to fact and was held to amount to poor professional performance on the same basis as the other allegations.

Allegation 6 was not proceeded with.

Allegation 7 was that the respondent:

‘Failed to record on one or more occasions the administration of ephedrine and its effects, if any.’

This was proven as to fact and was held to amount to professional misconduct. These findings were made on foot of admissions made by the respondent and the unchallenged evidence of Dr. Rollin.

Allegation 8 was as follows:

‘In your actions during the surgical procedure, you fell seriously short of the standards of clinical judgment and/or performance that might reasonably be expected from a Consultant Anaesthetist to include on the one hand conducting your anaesthetic care in a manner that would suggest you were comfortable that the patient's blood pressure was within normal parameters, despite the readings appearing on the monitor, and yet on the other hand, administering ephedrine to raise the patient's blood pressure’.

This allegation was proven as to fact and was held to amount to poor professional performance on the admissions of the respondent and the unchallenged evidence of Dr. Rollin.

Allegation 9 was that:

‘Arising from one or more of the above, failed to have adequate regard for the patient's safety’.

This was also proven as to fact and was held to amount to poor professional performance on the basis of the admissions and Dr. Rollin's unchallenged evidence. Having made those findings the FTPC made its recommendations to the Medical Council.

8 Before coming to those recommendations, it is appropriate that I should refer in part to the opinion of Dr. Rollin concerning the respondent's performance during the surgery on Mr. Cowan. On any view the opinion of Dr. Rollin was a devastating criticism of the performance of the respondent and the care given by her to Mr. Cowan. For the purposes of this judgment I will confine myself to reproducing Dr. Rollin's opinion on the two findings of professional misconduct.

9 The first such finding was that the respondent absented herself on one or more occasions from the theatre at all but especially in the circumstances set out in allegations 1(a) and/or 1(b) and/or 1(c) and/or 1(d). This is what Dr. Rollin had to say:...