Moore v Medical Council

• Jurisdiction: Ireland
• Judge: MR JUSTICE HANNA
• Judgment Date: 19 December 2006
• Neutral Citation: [2006] IEHC 439
• Docket Number: [No. 600 SP/2005]
• Court: High Court
• Date: 19 December 2006

[2006] IEHC 439

[No. 600 SP/2005]

MOORE v MEDICAL COUNCIL

BETWEEN

VICTOR MOORE

PLAINTIFF

-and-

THE MEDICAL COUNCIL

DEFENDANT

EX TEMPORE JUDGMENT OF

MR JUSTICE HANNA

delivered on the 19th day of December, 2006

1 This matter comes before the court by way of an application under Section 46 of the Medical Practitioners Act1978, hereafter referred to as the Act of 1978. The Appellant, Dr Victor Moore, seeks an order cancelling a decision of the Medical Council made on 10th November 2005 erasing his name from the General Register of Medical Practitioners. Dr Moore is an Obstetrician and Gynaecologist. He hails from Northern Ireland. He commenced working as a consultant obstetrician and gynaecologist in Sligo General Hospital in August 2001. We are concerned with matters which occurred in Sligo General Hospital between March 2002 and March 2004. Certain matters relating to the practice of Dr Moore during that period of time were investigated in the first instance at Sligo General Hospital and were then referred to the Medical Council in July 2004. The structure of the Act is such that when a complaint or an allegation of professional misconduct is made it is considered in the first instance by the Fitness to Practise Committee of the Council and its first task is to determine whether there is a prime facie case to hold an enquiry. Should it so determine it then proceeds to hold an enquiry and decides on the evidence whether or not there was professional misconduct on the part of the medical practitioner, the subject of the enquiry, and whether he or she is unfit to practice. These findings are produced in a report form which is then sent to the Medical Council which is bound by the factual determinations but in whose exclusive jurisdiction the issue of sanction lies. The appeal comes to this court from that decision of the respondent.

2 The Fitness to Practise committee heard the matter in late May and early June of 2005 over a period of five days. They applied the appropriate standard of proof, that being the criminal standard of proof of beyond reasonable doubt and they reached their decision on 11th October 2005. The committee recommended the erasure of Dr Moore from the register in the light of both the findings of professional misconduct and in the light of the findings of the Fitness to Practise Committee. As I have said, the jurisdiction to impose sanction is that of the Medical Council. The Council met on 10th November 2005, a submission on sanction was made on behalf of Dr Moore and the Council decided that the appropriate sanction was one of erasure and they communicated that decision to Dr Moore by means of a letter dated 11th November 2005. Five cases of professional misconduct were alleged against Dr Moore, professional misconduct was established in four.

3 Section 46(1) of the Act of 1978 provides as follows:

"Where a registered medical practitioner,"

4 a) has been found by the Fitness to Practise Committee on the basis of an enquiry and report pursuant to Section 45 of this Act to be guilty of professional misconduct or to be fit to engage in the practice of medicine because of physical or mental disability,

5 the Council may decide that the name of such person should be erased from the register or that during a period of specified duration registration of his name in the register concerned should not have effect."

6 Section 46(3) of the said act provides as follows:

"A person to whom a decision under the section relates may, within the period of 21 days, beginning on the date of the decision, apply to the High Court for cancellation of the decision and if he so applies,"

a) the High Court, on hearing the application, may either

(i) cancel the decision or

7 (ii) declare that it was proper for the Council to make a decision under the section in relation to such person and (either as the Court may consider proper) direct Council to erase his name from the register concerned or direct that during a specified period (beginning not earlier than the seven days after the decision of the Court) registration of his name on that register shall not have effect.

8 The effects of the latter provision are that the Court may declare that it was proper for the Council to make a decision under Section 46 in relation to a medical practitioner that and it may direct the erasure of that doctor's name from the register. Alternatively it may direct suspension of the medical practitioner's name from the register for a specified period beginning not earlier than seven days after the decision of the Court. Thus, it would appear that the Court does not have jurisdiction to impose conditions were it to decide to cancel the decision to erase. Cancellation, erasure or suspension are the only courses open to the Court within the framework of the Act of 1978.

9 In reM a Doctor [1984] I.R. 479, FinlayP. says at pp 482-483,

"I am satisfied that, if the Council decides under Section 46 to erase the name of the practitioner or to suspend the effect of his registration, the High Court has not got any power to substitute for either of these decisions a decision to attach conditions to the retention of his name in the register. It would appear to me to follow from this necessary interpretation that, if the court were satisfied that, notwithstanding the existence of a valid finding of misconduct, erasure of suspension was not an appropriate penalty to apply, the court would be obliged to cancel the decision under section 46."

10 FinlayP. goes on to state, at 483 - 484,

"upon the making by a practitioner of an application to the High Court under either section 46 or 47 to cancel a decision of the Council, the onus of proving the alleged misconduct of the practitioner rests on the Council as does the onus of establishing that the decision made by the Council with regard to the appropriate penalty is correct. Notwithstanding the use of the expression, "cancel the decision", in ss. 46 and 47, I am satisfied that the procedure does not constitute a mere appeal for the combined decisions of the committee and of the Council but is an entire trial of the issues involved.…the Council must present to the court such evidence as it may see fit in order to discharge the onus which is upon it, first, to establish the facts which it alleges proves the misconduct, secondly, to establish that such facts do constitute misconduct, and, thirdly, to support the decision it has made. The applicant is entitled to present such evidence on all these topics as he shall see fit. The court must then, it seems to me, proceed to reach a conclusion as to whether professional misconduct has been proved".

11 The following passages were cited for approval by Keane J, inÓ'Laoire v. The Medical Council (unreported 27th January 1995) and by McCracken J. in Cahill v. Dental Council (unreported 15th June 2001). What constitutes professional misconduct? The Medical Council is enjoined by Section 69(2) of the Act of 1978 to give guidelines to the medical profession generally on all matters relating to ethical code and behaviour. This the Medical Council does by issuing such guidelines and the material document as far as the instant matter is concerned is the Guide to Ethical Conduct and Behaviour, fifth edition, 1998. That document sets out the duties and responsibilities of a member of the medical profession. It states that the welfare of the patient is of paramount importance and at paragraph 1.5 of the guide it defines professional conduct as, "conduct of which doctors of experience, competence and good repute up holding the fundamental aims of the profession consider it disgraceful or dishonourable". In the case of Ó'Laoire v. Medical Council, Keane J reviewed relevant English and Irish authorities and provides us with a clear distillation of the law including what does and does not constitute professional misconduct. In so doing he was dealing with a case with the material guide published by the Medical Council, the third edition of which was published n 1989 and which defined professional misconduct as, "conduct which doctors of experience, competence and good repute consider disgraceful of dishonourable". At pages 106-107 of that decision Keane J enumerates in identifying what constitutes professional misconduct,

12 2 "1) Conduct which is infamous or disgraceful in the professional respect is professional misconduct under the meaning of Section 46(1) of the Act.

13 2) Conduct which would not be infamous or disgraceful to any other person done by a medical practitioner in relation to his profession, that is with regard either to his patients or his colleagues, may be considered infamous or disgraceful conduct in a professional respect.

14 3) Infamous or disgraceful conduct is conduct involving some degree of moral turpitude, fraud or dishonesty.

15 4) The fact that the person wrongly but honestly forms some particular opinion cannot of itself amount to infamous or disgraceful conduct in a professional sense.

16 5) Conduct which could not properly be characterized as infamous or disgraceful and which does not involve any degree of moral turpitude, fraud or dishonesty may still constitute professional misconduct if it is conduct connected with his profession in which the medical practitioner concerned has seriously fallen short by omission or commission of the standards of conduct expected among medical practitioners."

17 It is the fifth principle enunciated by Keane J inÓ'Laoire v. The Medical Council that drives the case against Dr Moore by the Medical Council. In focusing on that principle I should perhaps some observations. Firstly, in my view negligence to a high degree and well in excess of that which could give rise to civil liability can be found to amount to professional misconduct in...