Judgment Title: Hermann -v- Medical Council
Composition of Court:
Judgment by: Charleton J.
Status of Judgment: Approved
Neutral Citation Number:  IEHC 414
THE HIGH COURT
2010 434 SP
IN THE MATTER OF THE MEDICAL PRACTITIONERS ACT 2007
IN PARTICULAR THE MATTER OF SECTION 75(1)
OF THE MEDICAL PRACTITIONERS ACT 2007
JUDGMENT of Mr. Justice Charleton delivered on the 23rd day of November 2010
1. On the 1st June 2010, Dr Andrea Hermann, the appellant, had three findings of professional misconduct made against her by the Medical Council. Under s.75 of the Medical Practitioners Act 2007 (“the Act of 2007”), a registered medical practitioner against whom a sanction is imposed is entitled to appeal that decision, either as to a finding or as to the appropriateness of the sanction, or both, to the High Court. The appellant has appealed sanction only. The Medical Council suspended the appellant from practice for one year and, among other requirements ordered that she undergo a period of retraining for three years following that. Section 73 empowers the Court, on hearing this kind of appeal, to confirm the decision; to cancel and replace it with such other decision as the Court considers appropriate; to impose a different sanction; or to impose no sanction.
2. I turn first to the authorities as to how the Court should approach an appeal as to sanction alone before referring to the facts of this case and giving a decision on this appeal.
Sanctions against Medical Practitioners
(b) a censure in writing and a fine not exceeding €5,000;
(c) the attachment of conditions to the practitioner's registration, including restrictions on the practice of medicine that may be engaged in by the practitioner;
(d) the transfer of the practitioner's registration to another division of the register;
(e) the suspension of the practitioner's registration for a specified period;
(f) the cancellation of the practitioner's registration;
(g) a prohibition from applying for a specified period for the restoration of the practitioner's registration.
“72.(1) The Council shall, on deciding under section 71 to impose a
sanction referred to in section 71 (b), (c), (d), (e) or (g) on a registered medical practitioner, specify
(b) in the case of a sanction referred to in section 71 (c), the nature of the conditions to be attached to the practitioner's registration,
(c) in the case of a sanction referred to in section 71 (d), the division of the register to which the practitioner's registration is to be transferred,
(d) in the case of a sanction referred to in section 71 (e), the period of suspension of the practitioner's registration,
(e) in the case of a sanction referred to in section 71 (g), the period for which the practitioner is prohibited from applying for the restoration of the practitioner's registration.
(a) in the Council's opinion, the nature of the offence or the circumstances in which it was committed render the practitioner unfit to continue to practise medicine, or
(b) a conviction for such offence would render a person unable to be registered under this Act.”
6. The issue as to the appropriate approach by the court to the sanction was considered by Finlay P. in The Medical Council v. Dr. Michael Murphy, (High Court, Unreported 29th June 1994 Finlay P.). At p. 5 of that unreported judgment, he elucidated four useful principles that are applicable in cases which require a relatively severe penalty. That analysis is appropriate to this case and can usefully be regarded as of more general application:-
8. A reading of the Act makes it clear that the purpose of the Fitness to Practice Committee of the Medical Council is to enquire into claims of misconduct and insufficiency of competence by medical practitioners. Complaints are made, in the first instance to the Preliminary Proceedings Committee. A complaint can be made both by another medical practitioner, by a member of the public and by the Medical Council. The complaints can involve a number of grounds. These include professional misconduct; poor professional performance; a relevant medical disability; failure to comply with a condition of registration; a failure to comply with an undertaking not to repeat a form of misconduct or to engage in professional retraining or consent to undergo medical treatment under s. 67; violating the Act itself, or regulations made under it; and conviction for an indictable offence or the equivalent outside the State. In s. 2 of the Act reference is made to the nature of poor professional performance referred to in section 57(1). This category of misconduct was introduced for the first time in the Act of 2007. It means a failure to meet the standards of competence in knowledge and skill, or the application of knowledge and skill, or both, that could reasonably be expected of a medical practitioner practising medicine of the kind relevant to the doctor about whom a complaint is made.
9. The scheme of the Act therefore involves, in its mildest form, correction as a first gradation. In such cases the Medical Council may admonish or fine a doctor or issue a written censure. Some of these incidents may involve bringing a doctor to his or her senses. It is clear that there is an overlap in the more serious of these milder cases with the necessity to mark in an appropriate way the nature of the misconduct or lack of competence through attaching conditions to registration, and restricting the practice by the doctor of medicine. These restrictions can include a requirement for retraining, perhaps coupled with an undertaking not to practice during that time. Where a doctor is shown not to be dependably safe in the practice of one form of medicine a transfer to another division is appropriate. This kind of response rarely if ever overlaps with the earlier division and moves into the most serious category of cases where a suspension of registration, cancellation of registration and a prohibition for a substantial time against a practitioner applying for re-registration can be involved. I see no reason why in the most serious cases that this cannot be a lifetime ban on the practice of medicine. Correction, rehabilitation and punishment mark out the potential approaches by the Medical Council within these three major but sometimes overlapping categories of appropriate response to misconduct or lack of competence. To rigidly divide these responses into categories would be to undermine the scheme of the Act whereby the Fitness to Practice Committee, in making a recommendation to the Medical Council, and the Council itself, are entrusted with the important task of ensuring that the practice of medicine delivers its expected service to the public through being highly competent, safe and reliable. In the mildest cases of admonishment little danger may be involved to the public. When that category shades into the instances where it is necessary to issue a censure in writing, or to attach conditions to registration while restricting the practice of medicine that may be engaged by the practitioner, the category of misconduct or lack of competence has become more serious. It is clear from the scheme of the Act of 2007 that the approach by the Medical Council should involve protecting the public and reassuring them as to the standards that medical practitioners will at all times uphold; requiring that medical practice is by those who are properly trained and appropriately qualified to safely engage in the areas of medicine where they hold themselves out to be experts. In that and the other more serious category, the protection of the public is paramount to the approach of the Medical Council. The reputation of the medical profession must, in those instances be upheld. This exceeds in importance, where the misconduct is serious, the regrettable misfortune that must necessarily be visited upon a doctor.
The approach of the High Court on appeal
11. In Marinovich v. General Medical Council  UKPC 36, Lord Hope of Craighead, giving the judgment of the Privy Council, was of the opinion that curial deference should be uppermost in the mind of any court or appellate tribunal considering an appeal as to sanction. At paras. 28 and 29 he stated:-
29. That is not say that [the appeal body] may not intervene if there are good grounds for doing so. But in this case their Lordships are satisfied that there are no such grounds. This was a case of such a grave nature that a finding that the appellant was unfit to practise was inevitable. The Committee was entitled to give greater weight to the public interest and to the need to maintain public confidence in the profession and to the consequences to the appellant of the imposition of the penalty. Their Lordships are quite unable to say that the sanction of erasure which the Committee decided to impose in this case, while undoubtedly severe, was wrong or unjustified.”
Conduct in issue here
14. It is clear that the Medical Council regarded this case overall as being in the most serious category of professional misconduct and poor professional performance. The letter announcing the response to Dr Hermann cites as a reason for the Council’s decision “the severity of the finding of professional misconduct made against” the appellant. The operative part of its decision, as notified in that letter, reads:-
The Council further decided to invoke its powers under Section 71(c) of the Medical Practitioners Act, 2007, and attach the following conditions to the retention of your name in the Register maintained by the Council under the Act following the period of suspension.
(b) Clinical decision making.
(c) Collaboration and team working.
(iii) You must meet with a nominated person acceptable to the Medical Council, on a regular basis to discuss your progress towards achieving the aims set out in your professional development plan. The frequency of your meetings is to be agreed by the nominated person and the Medical Council.
(iv) You must agree to the nominated person acceptable to the Medical Council supplying reports to the Medical Counsel about your progress when requested.
(v) You must provide evidence to the Medical Council of your on-going and regular participation in relevant continuing professional development.
(vi) On the completion of your period of suspension you must confine your medical practice to working in hospitals in which there are at least two other gynaecologists who are on the Specialist Register.
(vii) You must confine your medical practice to a recognised training post where your work will be supervised by a named consultant, acceptable to the Medical Council.
(viii) You must be responsible for discharging all costs associated with the implementation and compliance with these conditions.
(ix) These conditions will remain in place for a minimum of three years.”
16. I accept the evidence of Dr. Jaffry and Dr. Boylan. That evidence has to be seen, however, within the context of the misconduct found as a matter of fact, following a full analysis of the evidence, by the Medical Council. As regards the sanction, the evidence of Dr. Boylan is clearly correct to the effect that the appellant will not be able to be admitted to a specialist training post. In consequence, that aspect of the decision of the Medical Council requires correction. The ultimate issue as to the appropriateness of the sanction is, however, to be approached on the basis of the treatment of the three patients. I turn to these now.
18. The Fitness to Practice Committee found that there was a failure by the appellant to conduct any adequate investigations or adequate examinations consequent upon the symptoms exhibited. The Committee also found there was poor professional performance and professional misconduct because of the appellant’s failure to consider and act upon the advice of other doctors. They found the appellant fell seriously short of the standard of care expected, notwithstanding personal difficulties at the time. They found the appellant had failed to appreciate the gravity of patient 8’s condition. The Committee also found that she had failed to carry out or arrange for appropriate surgical exploration prior to that eventually coming about. In the course of the hearing before the Fitness to Practice Committee, a view was expressed that it is surprising that patient 8 did not die. The response by the appellant was described as “unbelievable management”. On the appearance of the infection, the failure to treat appropriately with antibiotics and to engage in an appropriate response initiated and continued a delay that increased serious risk to the patient.
19. It might be commented in relation to patient 8 that, of itself, this case fell within the most serious gradation of misconduct and poor professional performance. It might be possible to argue, in mitigation, that the personal situation of the appellant, her mother being ill and her desire to travel to Germany to be with her when she died, could lesson the impact of the findings of misconduct. I do not agree. The Court can see no reason for the appellant to fail to answer the phone on a number of occasions and to fail to respond promptly, knowing that the etiquette in place in Galway Clinic meant that she had primary care of the patient. The sanction imposed by the Medical Council might be somehow argued to be harsh were it not for the findings in respect of patients 1 and 2.
21. The Fitness to Practice Committee noted the allegations that were admitted on behalf of the appellant. It was of the view that the clinical diagnosis of polycystic ovarian syndrome was not confirmed by ultrasound and therefore an option of conservative treatment should have been given to the patient. The findings continue:-
26. On examining the patient, however, the appellant indicated that the signs were of a “benign gynaecological condition and I had a suspicion that we are dealing here simply with a fibroid uterus”. On the 2nd August patient 2 attended her consultant medical oncologist, who was following up on her treatment for earlier breast cancer. He wrote to the appellant indicating that although the lesion on the C.T. scan looked like a predunculated fibroid, the MRI scan was more suggestive of a malignant process. There were very strong indications on this basis, the Fitness to Practice Committee found, that the patient had a cancerous process. On 17th August 2006 when the appellant operated on patient 2, a large adherent tumour was found. This was outside the areas of expertise of the appellant. A general surgeon was ten minutes away but the appellant chose instead to ask for a surgeon who might have reasonably been expected to attend after about an hour, but who in fact could only attend an hour and half later. The appropriate treatment, following discussion between the appellant and that surgeon, was for the patient to be closed, for radiotherapy to be initiated followed by an MRI scan and, when the tumour was shrunk, to operate again. This is what happened. Later, on the 8th December 2006 the appellant operated on patient 2 by way of a re-laparotomy and removed the tumour.
27. The Fitness to Practice Committee found that the appellant should have referred patient 2 to a gynae-oncologist. There was a suspicion, it seems to the Court a very strong one, that cancer was involved. In the circumstances, the appellant was acting outside her area of expertise in operating as outlined on 17th August. The Fitness to Practice Committee found that the appellant did not have sufficient experience or training to treat the condition. An explanation was given by the appellants as to the calling of the general surgeon and as to why the surgeon, who was closest, in terms of time, was not involved in the case. The Committee rejected that explanation. Having listened to the appellant I would say that I have a reasonable doubt in that regard. The appellant indicated that if she had not acted as she did, patient 2 might have been kept waiting for a proper examination by a gynae-oncologist; meaning to get an appointment. At the time in question, there had been one in Galway, but he had recently retired. The patient had a good outcome ultimately.
28. The appellant did not challenge the findings of the Fitness to Practice Committee. This was a case that could be regarded as falling into the category of moderately serious professional misconduct. The fact of recovery, and a potentially worse outcome had there been delay, is offered in mitigation. That, in the instance of patient 2 might reasonably be accepted and might mean that a penalty more towards the lower end of the appropriate scale in the medium bracket could have been imposed. It is only one case out of three, however.