How Medical Council decided to admonish Ivor Browne

 

IN June 1995, Prof Ivor Browne, the retired chief psychiatrist with the Eastern Health Board and Professor of Psychiatry at University College, Dublin, took out his copy of the Ethical Guide published by the Medical Council.

Browne wanted to know how to deal with a very difficult dilemma. A patient of his, Phyllis Hamilton, was about to make public the details of her relationship with one of Ireland's best known priests, Father Michael Cleary, who had died at the end of the previous year. She and Ross, her son by Fr Cleary, were under great stress and he feared that they would be unable to stand up to the further pressure of the denials and accusations that would follow the disclosure.

Browne was one of the very few people who knew the truth about the relationship and who could defend Phyllis Hamilton from accusations that she was a liar and a blackmailer. He knew that he had a duty to his patient, who wanted him to speak out, and to her son who also looked to him for help.

But he knew, too, that he had a duty to Michael Cleary. Which was more important, the need to protect his living patient or the need to protect the reputation of a dead man?

Browne read the guidelines and was "considerably relieved" to find that they offered, as he thought, a great deal of help.

They suggested to him that there were two relevant circumstances in which normal medical confidentiality could be broken: when it was necessary to protect the interests of the patient, and when it was necessary to safeguard another individual. These provisions, he believed, applied respectively to Phyllis and Ross Hamilton, and overrode his ethical duty to the dead priest.

On June 25th, 1995, the day her revelations appeared in the Sunday World, Phyllis Hamilton wrote a letter to Browne.

"Dear Ivor," it began, "I officially authorise you, as my doctor, to speak publicly about your professional knowledge of my life and relationship with Fr Michael Cleary. I have made the decision, as you know, to finally speak out about this matter because of the way myself and Ross have been treated since Father's death. It has also had a dreadful effect on my son, as you know, and I fear that if I did not do something, then Ross would ultimately suffer.

"I feel that there is no option open to me and I am putting myself in the firing line for a lot of serious criticism and innuendo. I am fully aware of the risk you are running by deciding to defend me in the face of my detractors.

"Your courage in agreeing to enter the fray is something I deeply appreciate and shall never forget."

The following Sunday, an interview with Prof Browne, confirming the truth of Phyllis Hamilton's story, was published in the Sunday World. On the same day, he also gave an interview to the This Week programme on RTE Radio.

The interviews, coming from an eminent psychiatrist, had an immediate effect on public debate about Hamilton's revelations, giving credibility to what she said. The spokesman for the Catholic Hierarchy, the Bishop of Achonry, Dr Thomas Flynn, told Morning Ireland, however, that: "At first sight he is a credible witness, but Mr Browne, as the doctor of the woman making the allegation, could not be seen as objective."

THE FIRST public indication that Browne was to face charges before the powerful and secretive Medical Council came in an article in The Irish Catholic in July 1995, where the registrar of the Medical Council, Brian Lea, was quoted as saying: "There is a body of opinion in psychiatry which believes that the duty of confidentiality encompasses not only the patient, but anyone involved in the case."

By the beginning of August 1995, the council had confirmed to The Irish Times that it intended to investigate complaints against Browne. Eventually, three allegations were made against him by the council itself.

It alleged he had:

. committed a serious breach of ethical standards by disclosing information given to him in confidence;

. failed to act in the best interests of his patient;

. acted in manner derogatory to the reputation of the medical profession.

These were serious charges, carrying with them the possibility that Browne could be struck off the register of medical practitioners.

On October 16th, 17th and 18th, 1996, the Fitness to Practise Committee of the council, chaired by Dr Patricia Casey, professor of psychiatry at UCD, held private hearings on Browne's case at Portobello Court, Dublin.

The committee initially proposed to call two expert witnesses - Dr Teresa Iglesias (misspelt throughout the transcript as "Inglesias"), a senior lecturer in philosophy and medical ethics at University College Dublin, and Dr Michael McGuinness, a consultant psychiatrist with the Eastern Health Board.

Dr McGuinness was, however, one of the people who had initially complained to the Medical Council about Browne's conduct. In a letter written in July 1995, he had alleged that what Browne had done was "devastating" to the principle of medical confidentiality.

At the start of the hearing, Browne's counsel objected, saying that Dr McGuinness should not be called as an expert witness because he would be unable to "come to the issue with a lack of bias and with the open mindedness" that "we expect from experts".

The committee therefore decided not to call Dr McGuinness as a witness, but to accept a written statement from him as evidence. It was just as well had the committee gone ahead and called McGuinness as an expert witness, Browne's lawyers would almost certainly have gone to the High Court and challenged the proceedings.

With McGuinness dropped as an expert witness, the only other witness the committee could call was Dr Iglesias.

She spoke of the importance of preserving confidentiality in the doctor patient relationship, and said that duty extended to information received from a third party in the course of that relationship.

But she also accepted that there were times when the doctor's duty to the health of the patient could come into conflict with the duty to keep confidential information received from a third party. She seemed to suggest that each of these duties was the primary one: "The primary duty is to his patient because he is treating the patient and caring for the patient, but he has an equally primary duty not to harm the third party".

THIS was the only evidence adduced by the committee against Browne, and it seems to amount to no more than the fact that the ethical decision he had to make was complex and difficult.

It is not clear how two duties could be "equally primary" and in any case Dr Iglesias said she could not say, in the specific case of Prof Browne, "whether the judgment he made was correct or not".

On Browne's side, there was evidence from Phyllis Hamilton her son Ross, Prof Anthony Clare and Browne himself. Both he and Phyllis Hamilton gave the committee detailed accounts of the medical relationship between them.

The committee was told that Hamilton was first committed to a psychiatric hospital by her mother in 1964, when she was 14. The combined traumas of being sexually abused by her father and being moved back and forth continually between her home and an orphanage became too much for her. About two years later, at St Loman's hospital, she became a patient of Browne.

With his encouragement, she began to work at the hospital, with the intention of becoming a nurse. Shortly afterwards, when she was 17, she met Fr Michael Cleary and soon began a sexual relationship with him. Browne heard about the relationship, either from Hamilton or from other sources. He disapproved, feeling that she was "wrecking the career she was embarked on".

When she was 20, she had a child by Fr Cleary. She called the baby Michael Ivor as a mark of her trust in the psychiatrist who was one of the few men who had shown her unconditional kindness.

The baby was, however, put up for adoption. When she rang the home in which her son had been placed, asking to see the baby, she was met with outraged dismissal. In distress, she contacted Browne again.

"I needed to talk, to tell somebody and needed reassurance that it will be all right," she told the committee. "If I did not have that link with somebody else outside the secret I think I would have gone mad."

From then until Fr Cleary's death, she continued to consult Browne "every few months or whatever, and if I was under any pressure I would go and thresh it out with him." On some occasions, she brought Fr Cleary with her.

"Sometimes, he would not even talk [to Ivor Browne]. He might bring me along and sit there. If I was distressed, the best person to help was Ivor. It wasn't in his interest for me to be distressed."

Browne also spoke directly to Fr Cleary, urging him to "get rid of me completely out of his life or do the right thing - i.e., marry me."

At one point in the 1970s, when Hamilton was threatening to write to the Archbishop of Dublin about the relationship, Browne suggested that they contact the Bishop of Galway, Dr Eamon Casey, instead. The three of them met Dr Casey in the Royal Dublin Hotel and, according to Browne's evidence to the committee, "he said he would take the case on and see what he could do".

But nothing actually changed. The relationship continued on the same footing and a second son, Ross, was born in 1976.

Phyllis Hamilton's mental health again suffered when Dr Casey's relationship with Annie Murphy became public and she feared that the same thing might happen to herself and Fr Cleary. She again became a patient of Browne. The stress became worse at the end of 1993 after Fr Cleary died.

In January 1994, Phoenix magazine published an article stating that Fr Cleary had fathered children. She was under pressure, both from journalists and from - the priest's family, who wanted her to issue a statement denying that there had been a relationship. She started to receive obscene phone calls and threatening letters.

Eventually, in June 1995, she decided for the sake of her son, who was showing signs of serious disturbance, and of her own mental health, to tell her story in public.

Long before she did so, when she had first gone to see Casey and was thinking of going public, she had extracted from Browne what she described as a promise and he described as "a tacit agreement", that he would "stand up and be counted" - vouch for the truth of her story.

Now, as her story became public, she called in the promise. She had no doubt that he would keep it because, as she told the hearing, "had anything happened either Ross or myself, I don't think Ivor would be able to live with himself".

"I saw what happened Michael Cleary for keeping secrets or whatever. I saw Michael die keeping a secret. I saw the same thing with Ross and myself. I think that Ivor would be the same."

IVOR Browne told the committee that he visited Phyllis and Ross in the cottage in Wicklow where they had been secluded by the Sunday World. From what he saw of them, he was "convinced [that] unless I did something they were in a serious condition, particularly Ross. I was worried, seriously worried, he might commit suicide."

He tried to think "as clearly as I could" about where his ethical duty lay, and came to a decision.

"My view was that the pretty dire need of Phyllis and her mental health and her son had for me to override the situation of confidentiality. I know it applies after death, but it wasn't going to specifically affect Michael Cleary, and for that reason I felt I had to act the way I did.

"I felt if I kept silent it would have a pretty deleterious effect on both of them, and I seriously believe, and I may be wrong, but my clinical judgment at the time was that he was at considerable risk of suicide.

"I think I was proved right in the sense that the media coverage and the pressure from the relatives of Michael Cleary all waned from the time I came out and nobody seriously questioned the validity of their statements after that."

According to Ross Hamilton's evidence, "we needed strong people around us to keep us strong. Ivor is a very strong person."

Ross remembered Browne coming to see them in Wicklow because "he was going to make a statement in the papers. At that time, it was very important he do that because, to the people that knew us closely, whether they denied it or said it was true they knew it was true. But the people who did not know it, there was debates on the radio, people were saying that is strange, it is not true'."

Ross Hamilton told the committee that he could not bear to "walk around with the majority of people saying, he is lying, probably to try to get money off the papers telling lies'".

He was happy to give his blessing to a public statement from Browne.

"We needed those people to see the truth. Dr Ivor Browne MD all those letters after his name, would give that credibility. There were credible people saying no way it is true. I know it is not true and they were bald, brash lies. And Ivor came in and said simply this is true. That is what we needed."

For Ross, Browne's statements to the media also helped him to come to terms with his own relationship with Fr Cleary.

"Actually," he told the hearing, for the first time, it was giving me the pride to say: yes, he is my father. I was still calling him Father Michael Cleary or Father Cleary, even after I done the story .... After that I was getting more, able to say my father and regards him as my father, not just the guy who helped in my conception."

The final witness to give evidence to the committee on behalf, of Browne was Dr Anthony Clare, Professor of Psychiatry at Trinity College Dublin and director of St Patrick's Hospital.

He told the committee that he and Browne "would stand on very different terrain on modern psychiatry, so even our professional sympathies are cool rather than warm" but that he "would not have any doubt about his professional integrity or serious purpose in the practice of his profession".

Clare stressed that "implicit in all the major statements I have seen on medical ethics and confidentiality is the belief and concept that the primary duty a doctor has is to his or her patient".

He also told the committee that the central issue in this case was "what happens when there is a conflict between duties, of confidentiality on the one hand to a patient and on the other hand to third parties". He said he had personally "never in 25 years been in a situation where the conflict was quite as sharp" as that which faced Browne.

Asked whether a doctor presented with such a dilemma could do any more than consult the ethical guidelines, consider the issues of principle and then make "an honest decision", Clare said: "I don't believe there is anything more a doctor can do as long as those things are done."

BEFORE the Fitness to Practice Committee retired to consider its findings, its own independent legal assessor reminded it that under Irish law "the fact that a doctor wrongly but honestly forms an opinion does not amount to professional misconduct".

The only real issue for the committee to consider, therefore, was whether or not it had been proven beyond reasonable doubt that Browne had failed to make an honest judgment in a complex, and perhaps unique, situation.

Delivering the judgment of the committee, Prof Patricia Casey said it accepted that there had been no proof beyond reasonable doubt that Browne had not made an honest judgment, and therefore rejected the charge that he had failed to act in the best interests of his patient.

The committee nevertheless found that Browne was guilty of professional misconduct, not because he had breached confidentiality, but because what he had said, to the Sunday World and RTE was "not the minimum possible disclosure in the circumstances". It also found him guilty of acting in a manner derogatory to the reputation of the medical profession.

It recommended to the full Medical Council that Browne be censured, and that he should be struck off the register of medical practitioners unless he engaged in a one to one course on ethical issues relevant to psychiatric, practice".

A month later, on November 19th, the full council held its hearing on the case. It decided to censure Browne for the breach of confidentiality and to admonish him for damaging the reputation of the medical profession. The threat to strike him off the register unless he did a course on medical ethics - the only sanction which he could have appealed to the High Court - was dropped.

The outcome of the case, therefore, was that Browne had made an honest judgment about how to resolve a complex conflict of obligations and had acted in the best interests of his patient.

The only evidence against him heard by the committee was a general opinion by a lecturer in medical ethics who said she was not in a position to say "whether the judgment he made was correct or not".

It was on this basis that Ivor Browne was censured and admonished by his peers - casting a shadow over his 40 years service as a psychiatrist.