Court overturns misconduct findings in Neary case

TWO consultant obstetricians have won a High Court order overturning as “unlawful” findings of professional misconduct against them by the Medical Council over their 1998 reports about the obstetric practice of Dr Michael Neary at Our Lady of Lourdes Hospital in Drogheda.

The judgment of Mr Justice Peter Kelly upholding the challenges by Dr John Murphy and Professor Walter Prendiville has significant implications for the future conduct of inquiries into allegations of professional misconduct against doctors.

The judge yesterday strongly criticised the handling of the case by the Medical Council and its Fitness for Practice Committee and ruled it would be unjust and pointless to return the matter to the council for a fresh consideration due to:

The passage of time.

The fact the council could not retrospectively apply an “expected standards” test of professional misconduct.

The length of time the matter was hanging over the doctors.

The “undoubted damage” done to them.

The judge found the committee failed to give any reasons for its majority decision that the doctors were guilty of professional misconduct and that both doctors were left “absolutely in the dark” as to the basis for those findings.

Noting the case was the first challenge of its type to procedures followed by the council for some 30 years, he further set out how it should in future deal with reports from the committee.

The proceedings arose after Prof Prendiville, Dr Murphy and Dr Bernard Stuart, of the Coombe Women’s Hospital, were asked in 1998 by the Irish Hospital Consultants’ Association to review files on a number of Dr Neary’s patients at the Lourdes Hospital.

The doctors produced reports opposing the suspension of Dr Neary —– pending a review by the Institute of Obstetrics and Gynaecology in Dublin —– on the basis of Dr Neary’s undertaking that he would not perform any more caesarean hysterectomies unless he had the agreement of another consultant. Dr Neary did adhere to that undertaking.

Dr Neary was later struck off the medical register for performing unnecessary caeserean hysterectomies at the hospital.

Acting on a complaint by the Patient Focus group about the three obstetricians, the Fitness For Practice Committee conducted an inquiry and the council last February upheld its recommendations that they be found guilty of professional misconduct. While the committee recommended sanctions be imposed on the three, the Medical Council decided to impose no sanctions.

The judge noted an “extraordinary” press release issued for the Medical Council had set out its decision to uphold the findings of misconduct but made no reference to the fact no sanctions were being imposed.

Prof Prendiville, of South Circular Road, Dublin, was found guilty of one allegation of professional misconduct relating to the failure to apply the standard of conduct expected by a medical practitioner whilst compiling the report.

Dr Murphy, of the Blackrock Clinic and a consultant obstetrician and gynaecologist with the National

Maternity Hospital, Holles Street, was found guilty of three allegations of “professional misconduct” on the basis of the same “expected standards” test.

In his 94-page judgment, Mr Justice Kelly ruled the committee had applied, and the Council upheld, the wrong standard of professional misconduct in reaching its decision. The committee had applied an “expected standards of conduct” test, not the “moral turpitude” standard “disgraceful conduct” set out until 2004 in all the Council’s guides on ethical standards for the medical profession, he noted.

It was unfair of the council to apply to the 1998 reports of the doctors a standard which the council itself had not notified the profession of until years later.

He found the council was wrong in law in deciding it could not review the committee’s findings of professional misconduct but could only address the issue of sanction. The council was not “a rubber stamp” of the committee’s findings and was obliged under the Medical Practitioners Act to exercise an independent judgment whether the findings should be confirmed or rejected.

The council was not obliged to rehear evidence put before the Fitness for Practice Committee but was obliged to consider arguments, given conflicting evidence tendered to the committee, why the committee should not have found as it did.

The judge said the highest standards of natural justice should apply where the allegations against the doctors put their professional standing at stake.

He also ruled the council, in deciding only to address the issue of sanction, had acted on incorrect legal advice and had followed a defective procedure in getting that advice.

It was wrong that such advice was given to the council in the absence of the two obstetricians and their counsel and that it came from the council’s own registrar and in house lawyer.

While he was not saying the advice was biased, there was a perception of bias, the judge said.

He also found the committee was required but failed to give reasons for its findings of professional misconduct.

The committee was split on the issues before it and the doctors were entitled to “at least a general explanation” for the committee’s majority decision.

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