Medical Council Bias?

Doctor challenged Medical Council

September 14, 2012


An Irish Medical Times Article; Link.

So no surprises here then. The High Court quashes a decision of the Irish Medical Council’s ‘Fitness to Practise Committee’. Why? The Committee decided to ignore it’s own expert’s opinion and instead go with the opinion of Professor Patricia Casey. Now that doesn’t sound too bad does it? Except Professor Casey was the one who made the complaint against this doctor in the first place. As far as I remember, she was also involved on the night this man died by suicide but was in bed when asked for advice (which she gave).

Having had previous experience with the Medical Council and Prof Casey after my son’s death, I feel I’m perfectly entitled to comment. You may find it interesting that Prof Casey writes for the Irish Independent and that the ‘Independent’ Article referring to this Case doesn’t mention Prof Casey or the reason for the High Court decision. Maybe just a blip! Here.

A person would have to wonder if all Medical Council decisions should now be reviewed. Or do all of us, who went to the trouble of making a complaint, have to take the Medical Council decisions to the High Court in order to get Justice?

Article…

Ed Madden, BL, looks at a recent High Court case in which a doctor claimed that the Fitness to Practise Committee of the Medical Council had failed to comply with standards of natural and constitutional justice when it reached a decision that he was guilty of professional misconduct.

On the evening of April 12, 2008, an African national attempted suicide by throwing himself into the river Liffey. The following morning, he was admitted to the St Aloysius Ward of the Mater Hospital in Dublin by Dr Samuel McManus, who was then a Senior House Officer in Psychiatry. During the afternoon, the patient again attempted suicide — on this occasion by hanging himself by his shoelaces from a shower rail.  While the attempt was interrupted, he never regained consciousness and died on April 28, 2008.

Prior to the suicide attempt at the hospital, Dr McManus made various clinical notes, including notes which stated: ‘… current suicidal ideation. IMP. High suicide risk… ’

Later that day, after the suicide attempt, he altered the notes with a pen using different ink in a clearly visible manner, so that they then read:

‘Denies current suicidal ideation… IMP. High suicide risk attempt.’

When this alteration to the medical records became known, Dr McManus was the subject of a complaint to the Medical Council (the Council) by Consultant Psychiatrist Prof Patricia Casey. In due course, a number of allegations of professional misconduct were made against the doctor by the Council relating to the changed notes.

Dr McManus was invited to attend a Fitness to Practise Committee Inquiry, which was scheduled to take place on October 8, 2010. He was advised of the names of the witnesses as to fact that would be called at the inquiry. These included Dr Casey, a Dr Jabber and Nurse Fowler. He was also advised that Dr Siobhán Barry, a psychiatrist, would be called as an expert witness on the matters in issue.

‘Retrospective additions’

At the hearing before the Fitness to Practise Committee (the Committee), Dr McManus admitted that he had made ‘retrospective additions and/or amendments’ to the patient’s medical records which he knew, or ought to have known, were ‘inappropriate in the circumstances’. However, he denied that this constituted misconduct.

At the conclusion of the Inquiry, the Committee found him guilty of professional misconduct. In so doing, they implicitly rejected the views of Dr Barry, whose testimony was to a significant extent exculpatory of Dr McManus, insofar as his reasons for making the alterations to the notes were concerned. The Committee also rejected the advice of its own legal assessor in the case.

For her part, Dr Barry gave evidence to the Committee in line with her written report, which had been circulated to Dr McManus’s legal advisers in advance of the Inquiry. Her view was that retrospective notes were not uncommon. A number of changes made to the notes in this case “had made no material difference”. Overall, in her view, there was very little change in the meaning of the records because they were a very small part of a much bigger history. She did, however, expect that an alteration of this kind in the notes would be timed and dated (which it was not).

Committee report

In its report to the Medical Council, the Committee recommended a sanction of ‘admonishment’ in respect of Dr McManus. However, the Council subsequently substituted that with a sanction of ‘advice’.  Because the particular sanction fell short of the imposition of conditions, or the suspension or erasure of the doctor’s name from the Register, Dr McManus did not enjoy a statutory right of appeal to the High Court. Instead, he brought Judicial Review proceedings, in which he contended that the Committee had failed to comply with basic standards of natural and constitutional justice.

When the matter came on for hearing in the High Court in August 2012, it was submitted on behalf of Dr McManus that the Committee had given inadequate reasons for its failure to rely on the evidence of Dr Barry and for its failure to follow the advice of its own legal assessor. It was also submitted that the finding of misconduct was irrational and ought not to be allowed to stand.

Giving his judgment in the case, Mr Justice Kearns said there was no obligation on the Committee to give detailed reasons or a discursive judgment as to why it decided not to accept the views offered by the legal assessor in the present case. Those views “were directed almost entirely to the weight of the evidence, which was, peculiarly, a matter for the Committee itself to determine”.

The judge was also satisfied that there was “adequate evidential material” before the Committee to enable it to reach the particular conclusions which it did reach. Having regard to “the relatively mild sanction imposed in the case”, it was difficult to see how that sanction was disproportionate, particularly in circumstances where the facts of the case were admitted by the doctor and the inappropriateness of amending or altering the notes was also admitted.

The judge said that “the keeping of accurate medical records was a matter of such basic importance to the discharge of the functions of any medical practitioner” that expert evidence on the topic would not have been required at the Inquiry. The importance of such records was “self evident”. They constitute a vital safeguard for both medical practitioners and patients alike.

The judge said, however, that the decision of the Committee in the present case was to call an expert witness, Dr Barry. He said that: “It was hardly fair or appropriate to reject or ignore the views of its own expert and elevate to that status for the purpose of its decision the evidence offered by Prof Casey.”

The judge continued: “Whatever her qualifications and experience, Prof Casey was the complainant in the case and it had never been intimated that the Committee would regard her as anything other than a witness as to fact. The cross-examination of Prof Casey was predicated on the assumption that Dr Barry would be giving the material expert evidence on misconduct.”

It was contended on behalf of Dr McManus that different decisions as to the strategy and conduct of the defence might have been made, had it been appreciated that the Committee “would switch from the opinion of its own expert and substitute in its place the view of a witness as to fact who was also the complainant”. It was submitted that at the very least, Dr McManus should have been given due warning of any such intention so as to permit an effective cross-examination to take place.

‘Utmost gravity’

The judge said that the hearing before the Committee “was a matter of the utmost gravity” to Dr McManus, who “hitherto had an unblemished record”. The imposition of any finding of professional misconduct or sanction could be justified only in circumstances where the Committee ensured that all the requirements of fair procedures were scrupulously followed.

One of these requirements was the right of Dr McManus to cross-examine by counsel. That right of cross-examination must “be free and unrestricted and not one undertaken under a mistaken assumption created by the tribunal and for which [Dr McManus] is in no way responsible”.

In the present case, while he was satisfied that Dr McManus, in altering the medical notes, “did something wrong (and for which he accepts responsibility)”, he might also have been “disadvantaged to an appreciable degree” by the procedures adopted by the Committee.

In these circumstances, the decisions arrived at by the Committee and the Council would be quashed by the Court.

Reference: 2012 IEHC 350

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