T -v- Medical Council
Neutral citation (2011) IEHC 352.
High Court
Judgment was delivered on July 19th, 2011, by the court president, Mr Justice Nicholas Kearns.
Judgment
An appeal against a finding of the Medical Council’s Fitness to Practise Committee that “Dr T” was guilty of professional misconduct was upheld by the High Court.
The court also ordered that the identity of the doctor and his place of practice not be published.
Background
The incident giving rise to the complaint was alleged to have taken place in the doctor’s surgery in a rural part of Ireland in January 1996.
The complaint was of an inappropriate internal examination in circumstances which did not warrant such an examination.
A period of 14 years elapsed before the female complainant came forward with a complaint to the Medical Council, which examined the matter in 2010.
A prima faciecase was found to have arisen, leading to a full three-day hearing before the Fitness to Practise Committee. The complaint was upheld and a period of suspension imposed.
The applicant appealed the decision of the committee on the grounds it should not have proceeded further with the hearing because of the lengthy delay and that the allegations were not proved beyond a reasonable doubt.
Other grounds for appeal were also advanced, but Mr Justice Kearns said he had to decide as a preliminary point on the question of delay. He pointed out that ordinarily this issue should be raised at the outset of a hearing, and if that application is refused then that decision should be brought to judicial review.
That did not happen, but the parties agreed the evidence given to the Fitness to Practise Committee could form the basis of the court’s deliberations.
Both sides also agreed the decided cases regarding delay in sex cases are important and relevant.
Insofar as the complainant is concerned, Mr Justice Kearns said this was not a case where there was evidence that the doctor was in a position of trust or authority or of exercising dominion over her. There should therefore be some reasonable explanation, backed up by medical evidence, for the delay in making the complaint.
Mr Justice Kearns said the complainant had outlined various difficulties she had in the following years, but they seemed to have stemmed from unrelated issues.
“I have to bear in mind she had no problem apparently telling a large range of people about her complaint against the applicant and no psychiatric evidence or psychological evidence was offered in support of her supposed inability to come forward at an earlier time or within a reasonable time.”
Mr Justice Kearns said he considered the doctor was placed in a virtually impossible position in trying to meet the complaint that had been made. At the time he had 1,500 to 2,000 patients in his practice.
He had given sworn testimony that he had no recollection of this particular patient and he had no records of that time he could check because he did not keep records going back that far.
Mr Justice Kearns said he thought there would be substantial unfairness in allowing the matter to proceed now to a full rehearing.
With the records gone, there were obvious difficulties and prejudice accruing to the applicant. He had no way of checking what condition the complainant actually complained of or when she did consult him or what advice he may have given.
Apparently this was a once-off visit and there was no clear or coherent evidence of follow-up visits.
“The rights and wrongs of this matter are really lost now in the mists of time and it would be an injustice and a want of fair procedure to allow this mater proceed any further.”
The judge allowed the appeal and cancelled the decision made by the Medical Council, adding that the name of the doctor and the locality in which he practised should not be published.
Nicholas Butler SC and Eileen Barrington BL, instructed by Arthur Cos Co, for the plaintiff; Dominic McGinn SC and Patrick Leonard BL, instructed by McDowell Purcell, for the defendant.
The full judgment is on courts.ie