Fair procedures must apply in fitness to practise hearings

McManus -v- the Fitness to Practise Committee of the Medical Council Anor

Neutral citation: 2012 IEHC 350

High Court

Judgment was delivered on August 8th, 2012, by president of the High Court Mr Justice Nicholas Kearns.

Judgment

Findings made against a doctor by a Medical Council fitness to practise committee can be justified only where the committee ensures all the requirements of fair procedures are scrupulously followed and extended to the applicant.

Background

The Medical Council had brought findings of professional misconduct against Dr Samuel McManus after a patient at the Mater hospital in Dublin died in April 2008. The patient, an African national, had attempted suicide by throwing himself into the Liffey. He was assessed and admitted to the hospital by Dr McManus. After admittance, he attempted to hang himself and although he was interrupted, he never regained consciousness and died two weeks later.

After the incident, the doctor altered the patients notes and a complaint was made to the Medical Council about this by consultant psychiatrist Prof Patricia Casey.

At the fitness to practise inquiry, expert for the Medical Council Dr Siobhán Barry said the alterations made by Dr McManus were in a different coloured ink and so did “not indicate an attempt at deception”.

She also said the notes were not altered “so as to significantly change the meaning of the records”. Dr Barry said in evidence that making notes retrospectively was not uncommon. However Prof Casey in evidence said retrospectively making notes was “very rare”.

During the inquiry, counsel for Dr McManus had said his client admitted having amended the notes, but this did not amount to professional misconduct. Counsel had also argued that Dr Barry’s report did not find Dr McManus’s actions were a serious falling short of the professional standard.

The committee’s legal adviser, senior counsel Kevin Cross, had also advised that Dr Barry’s evidence was exculpatory of Dr McManus. The committee found five allegations of professional misconduct against Dr McManus were proven and recommended that he be admonished. The Medical Council imposed the sanction of advice, which does not need to be confirmed by the High Court. The doctor sought judicial review.

At the review, counsel for Dr McManus said the committee had not accepted the advice of its legal assessor and relied on the evidence of Prof Casey as the basis for its finding. If they had known her evidence would be relied on as expert, they would have objected and cross-examined her differently.

Counsel for the respondents said the committee was allowed to prefer evidence other than that given by Dr Barry.

Decision

Mr Justice Kearns said the committee was not obliged to accept the advice of its legal assessor. Referring to the cross-examination of Prof Casey, he said the importance of adhering scrupulously to the requirements of fair procedures was central to the proper conduct of disciplinary processes that may result in serious sanctions.

“This hearing was a matter of the utmost gravity to the applicant, a doctor with a hitherto unblemished record, and the imposition of any finding of professional misconduct and/or imposition of sanction (with all its attendant adverse career consequences) could be justified only in circumstances where the committee ensured that all the requirements of fair procedures were scrupulously followed and extended to the applicant throughout the disciplinary process,” he said.

He highlighted the judgment of Mr Justice Cearbhall Ó Dálaigh in re Haughey (1971) IR 217, which he said implied “that the right of cross-examination be free and unrestricted and not one undertaken under a mistaken assumption created by the tribunal and for which the applicant is in no way responsible”.

“In the instant case, while I am satisfied that the applicant in altering the medical notes did something wrong (and for which he accepts responsibility), he may also have been disadvantaged to an appreciable degree by the procedures adopted by the committee in arriving at and justifying its decision,” Mr Justice Kearns said.

“In those circumstances I believe the decisions arrived at by the respondents should be quashed.”

The full judgment is on courts.ie.

Eugene Gleeson SC and Simon Mills BL, instructed by Matheson Ormsby Prentice, for Dr McManus; Eoin McCullough SC and Patrick Leonard BL, instructed by McDowell Purcell Solicitors, for the Medical Council.