RULING RESTORES REPUTATIONS

By ruling against the medical council’s findings, Mr Justice Kelly has cast a harsh spotlight on their disciplinary practices, writes Conor Ryan.

THE judgement of Mr Justice Peter Kelly has cast a harsh spotlight on the workings and discipline practices of the medical council.

In 94 pages the High Court judge and medical-legal specialist ripped to shreds the manner in which the medical council’s fitness to practice committee carried out an inquiry on two men who produced the initial reports on disgraced obstetrician Michael Neary in 1998.

As he did so Mr Justice Kelly restored the reputations of the two men and quashed the committee’s findings of professional misconduct.

Yesterday’s published judgment also revealed in the course of contesting the judicial review the medical council had asked him to refer the case back to it so it could have a chance to make amends. He said he could do this if he thought the decision reached by its internal fitness to practice committee (FPC) was sound, but he did not believe this was the case.

On two key grounds he quashed the decision of the FPC inquiry and then went on to criticise the manner in which the council dealt with this decision.

In doing so he wrote 20,000 words and managed to leave the medical council without an option for a single positive spin.

From start to finish he decided the council’s role in reprimanding Dr Walter Prendiville and Dr John F Murphy to be wanting.

Ultimately he could only rule in favour of the obstetricians on procedural details.

However, he said if they had not won their case on the narrow terms allowed under a High Court judicial review they had grounds to contest the rulings of the medical council on the merits of the Constitution.

He said under article 40 of the Irish Constitution both men had the right to defend their good name and the actions of the medical council denied them this. A point Mr Justice Kelly kept returning to was that the council gave the men no right to appeal the decision of its committee.

Worse still, people who were sitting on the FPC were also on the medical council when it decided how to treat the contents of the inquiry.

He said this amounted to some people being both the jury and the appeals’ body examining the jury. This, he said, was not acceptable.

“A decision of the FPC ought to be capable of independent reconsideration by the council,” he said.

Dr Prendiville had sought to appeal the manner in which the inquiry was conducted.

Instead, medical council president Dr John Hillery and vice-president Colm Quigley sought legal advice and decided their role was to accept the findings of the committee. They had merely to decide if there should be sanctions and if the reports should be published.

Mr Justice Kelly ruled emphatically the medical council’s actions were wrong in law and ultimately undermined the legitimacy of its disciplinary process.

The doctors in the dock had the same rights of any accused person to defend themselves and appeal decisions at all levels right up to the Supreme Court.

In this case he said they were tried by the FPC and had no option to appeal its findings and could only seek a judicial review of the procedures involved.

However, he reiterated the matter could be sent back to the medical council with corrected procedures if he thought the FPC inquiry was blemish-free.

However, in his opinion it was fundamentally flawed in it how it dealt with the issue and the manner in which it produced its findings.

The FPC inquiry was set up as a committee of the council and heard evidence about the report compiled by Drs Prendiville and Murphy along with another doctor Bernard Stuart on November 3, 1998.

In their statements to the judicial review, both Drs Prendiville and Murphy said they had only 72 hours to carry out the report and were not given terms of reference.

IN 1998 Dr Murphy had taken the view the proposed suspension of Neary without a review by other doctors would be devastating for him both personally and professionally and the process was unfair.

He agreed to furnish a report for the Irish hospital consultants’ association but like Dr Prendiville he did not believe it would go elsewhere or be used to form the basis of a case defending Dr Neary.

Ultimately however, it was this report which allowed Micheal Neary to continue practising.

However, Mr Justice Kelly said it was wrong for the professional reputation of the two doctors to be damaged on the basis of a report they produced without any guidance.

He also said the FPC inquiry had tried them on a definition of misconduct which left them guilty of disgraceful and dishonourable behaviour.

It was the judge’s opinion it was wrong of the medical council to use this definition because it was not actually written down for eight years after the alleged offence. He ruled they could not be tried for an offence which was not known about at the time.

He also said the doctors concerned did not get a detailed written explanation on the rulings of the FPC and they were entitled to it.

These should have formed the basis of an appeal. He stressed he did not question the veracity of the witness statements at the FPC as it was not his place to do so. Instead he accepted the case put by both doctors that their professional reputations had been tarnished.

In essence, Mr Justice Kelly gave two of the doctors who looked over the reports of Dr Neary, at Dr Murphy’s house in 1998, the right to have their reputations back.