Medical Council fails to secure orders for interim suspension of consultant facing criminal proceedings

A judge has declined to suspend the registration of a medical consultant facing criminal proceedings on foot of three complaints made against him, including one described as “extremely serious”.

President of the High Court Mr Justice David Barniville decided against an interim suspension order (ISO) and instead ruled the doctor may continue to practice on foot of various undertakings until any potential fitness to practice proceedings are determined.

The undertakings, which have the same effects as court orders, include those requiring the doctor to be chaperoned when dealing with female patients, to obtain a two-stage consent from patients, a general consent and a specific consent to a specific examination, to keep the Medical Council updated on the criminal proceedings and to immediately inform it of any new complaints.

Public register

The council may also disclose the terms of the undertakings to the Minister for Health, the DPP, the chief executives of the HSE and UK General Medical Council, and place them on its public register.

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The Medical Council had argued an interim suspension order was necessary due to the seriousness of the allegations and for public protection. The doctor, who strenuously denies the allegations, submitted the matter could be dealt with by undertakings.

Precise details of the allegations made against the doctor to An Garda Síochána and its investigation into those, which led to the separate criminal proceedings, were among the matters redacted (blacked out) from the judge’s judgment on the council’s application under the Medical Practitioners Act.

The consultant, who cannot be identified for legal reasons, has practised in Ireland and abroad for some 40 years and worked for almost 30 years in a HSE hospital until last summer. He continues to work in a private clinic with a list of hundreds of patients.

The council began a correspondence with him in June 2021 after he informed it he had inadvertently incorrectly answered “no” just weeks earlier to a question on his annual renewal of registration form concerning whether he was aware of any criminal prosecutions against him. Solicitors for the doctor informed the council he had been interviewed concerning complaints against him, which he denied, and was co-operating with a Garda investigation.

Following an investigation by the council’s Preliminary Proceedings Committee (PPC)) an application was made to the High Court last September for an ISO. The doctor opposed suspension but offered to continue undertakings given by him in August to the council, including being chaperoned with female patients.

After a hearing in November, the judge delivered a judgment last February which was published last week. He said the council had no alternative but to bring the application for reasons including the requirement under the Medical Practitioners Act for protection of the public and because an undertaking to the council, in contrast to an undertaking to the High Court, is not enforceable.

‘Absolute bar’

The judge said he had to balance the protection of the public against the rights of the doctor, including the presumption of innocence, a “significant” factor but not an “absolute bar” to suspension.

There was no doubt one of the allegations against the doctor which had led to the criminal process was “extremely serious if true”, he said. On the second allegation, he could say no more other than the DPP was satisfied the case was of sufficient strength to merit prosecution. On the third, if adverse findings were ultimately made against the doctor in any fitness to practise inquiry, he was likely to face serious sanctions such as cancellation of his registration, said the judge.

He took into account the doctor’s strong denial of the allegations and said it was neither the council nor the court’s role to make findings of fact or resolve conflicts of evidence which were a matter for the criminal trial.

Other factors to be balanced included the rights to a livelihood and good name, said the judge. The doctor had no income except his medical practice and a suspension was likely to end his career. The HSE hospital had confirmed it had no documents concerning any complaints regarding him from January 1997 on and the clinic had no relevant material apart from a historic unrelated complaint which the council’s PPC decided a decade ago should not go any further. The clinic’s administrator also provided a character reference.

Doctor’s speciality

The judge gave some, but “not great”, weight to the impact on the doctor’s patients if he was suspended, noting the council had not disputed other consultants in the doctor’s speciality who did not have the capacity to take on his patients.

The court had “wide discretion and broad jurisdiction” concerning what order should be made. The main consideration was protection of the public but, in the context of the rights to a good name and reputation and to earn a livelihood, the courts had repeatedly stressed an interim suspension order should be reserved for exceptional cases where no other order will serve the community and had accepted undertakings in several cases.

Having balanced all the factors, he concluded the application should be determined on the basis of undertakings.