The recent enactment of the Medical Practitioners Act, 2007 has been heralded as a major change to the manner in which the Medical profession is to be regulated. It is fair to say that various medical scandals, and in particular the Neary scandal from Drogheda was a significant impetuous to having the Act brought into Law. The 2007 Act now requires professional misconduct enquires to be heard in public, unless at the request of either the medical practitioner or the patient, the Fitness To Practice Committee decides otherwise in the “interests of Justice”. Section 85 of the Act requires the Council to publish a transcript of all or part of the doctor’s professional misconduct enquiry after consultation with the relevant committee.

Another major reform is the change in the make up of the membership of the Fitness To Practice Committee. Pursuant to Section 17(1) of the 2007 Act there will now be only 10 of the 25 members of the Fitness To Practice Committee who are entitled to be registered medical practitioners and only six of those 10 must be currently practising medicine in the State. In any event pursuant to Section 20(10) of the Act, only Fitness To Practice Committee established to hear a complaint by a patient, in future must possess a majority of non-medical practitioners. These are radical changes indeed and undoubtedly should bring more openness, transparency and a perception of impartiality to the enquiry process.

However, it is important to point out that pursuant to Section 57 of the 2007 Act, any complaint is screened before the preliminary proceedings committee. That committee screens all of the complaints, to establish whether or not a prima facia complaint is made out, which justifies a full detailed enquiry by the Fitness To Practice Committee. The latest statistics available for the year 2009 make interesting reading. In that year there were a total of 337 complaints made against doctors (made up of consultants, 147, non-consultant hospital doctors 20, general practitioners 167, other 3). Of those 337 complaints not all have yet been dealt with but of the completed investigations, 87% of the complaints received were dealt with on the basis that no prima facia case was made out and therefore no justification for a Fitness To Practice enquiry existed. Only 13% the complaints received, were held to have a prima facia case made out and were referred on to the Fitness To Practice Committee to hold a full enquiry. Obviously it would take some time before the final outcome of all of the complaints made in 2009 are known. However, if the statistics for the year 2008 are anything to go by, they resulted in a total of 24 medical practitioners receiving being found guilty out of a total number of complaints of something approaching 300. Of the 24 doctors who were found guilty of misconduct or poor professional performance in 2008, 3 were struck off, 7 had conditions attached to their practice, one was temporarily suspended, 4 were admonished and 9 had no sanction imposed.

The question therefore has to be asked; is it worth all of the time, effort and emotional stress involve for the patient, in making a complaint to the Medical Council? However, what is the alternative if the patient doesn’t make a complaint? How will or can the patient otherwise hold the doctor in any way accountable for their actions?

Against the above background it is illuminating to look at the recent Medical Council enquiry into the Crumlin Hospital case which was one of the first held in public pursuant to the 2007 Act and involving two paediatric surgeons who wrongly removed a healthy kidney. Due to a series of blunders a healthy kidney was erroneously removed and this was despite numerous concerns and warnings being expressed by the parents to health staff that the surgeons might make the very error that in fact occurred.

After taking the evidence in public for several days the Council made an apparently unprecedented decision to end the hearing prematurely before a final witness was heard or closing submissions made. After the case had adjourned for lunch, it didn’t resume and the Chairman of the Enquiry announced that the case was over. The Committee invoked Section 67 of the Medical Practitioners Act, 2007 which effectively allowed the Medical Practitioners off unscathed. They were merely required to give an undertaking not to repeat the conduct complained of and were required to write a report for the Council within 12 months outlining the lessons that they had learnt from the case.

Some media commentators have remarked that the result and the sanction imposed by the Medical Council in the case was lenient compared to the manner in which a very similar case of catastrophic error was dealt with by the UK authority. Two UK surgeons who made a similar blunder in Wales in 2002 by removing the patient’s healthy kidney due to reading the X-ray back to front were charged before the Criminal Courts with manslaughter. In the event they were acquitted as the Crown could not prove a causal link between their catastrophic error and the post operative septicaemia which was the proximate cause of death. On the other hand, the UK General Medical Council charged the two surgeons before the UK Fitness To Practice Committee they were found guilty of misconduct and were suspended from practice for 12 months.

It will be difficult for the public or patients to understand how and why the outcome in the two cases cited above were so radically different, if one assumes that the standard of professional criteria for defining and proving “misconduct” are the same in both countries. However, at least now the hearings of the Irish Medical Council’s Fitness To Practice Committee are held in public so that their deliberations are transparent and the public does get to hear how the inquiries are conducted and the rationale for the decisions made. Up until the 2007 Act was enacted all of these enquiries were held in private under an effective veil of secrecy which made it impossibly difficult to determine what was happening, whether fair procedures were being followed and/or whether impartial decisions were being made. Indeed, up to 2007, the patient making the complaint was not even entitled to sit and hear the evidence given by other witnesses at the enquiry. Also they were not entitled to legal representation at the enquiry and had to leave the hearing as soon as they had completed their evidence, being unable to hear the rest of the case arising from the complaint that they had made and the mis-treatment that they had received. This was a truly preposterous state of affairs and at least now under the new Act, these deficiencies have been properly addressed.

If you have any further queries, please contact Michael Boylan.

13 October 2010

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