High Court Provides Further Guidance in Confirmation Applications under Section 76 of the Medical Practitioners Act, 2007

Medical Council v Deirdre Lohan-Mannion [2017] IEHC 401

In a recent Judgment, Kelly P has provided further guidance on the factors that fall to be considered when the Court exercises its function under Section 76(3) of the Medical Practitioners Act, 2007. As had already been set out during the course of a previous ex tempore judgment delivered on 19 December 2016, Medical Council v M.A.G.A. [2016] IEHC 779, the Court is mandated to confirm a decision of the Medical Council (“the Council”) as to sanction “unless it sees good reason not to do so”. This was interpreted in M.A.G.A. to mean that the Court can only refuse an order sought under Section 76(3) if it is of the view that the Council had come to a decision on sanction that was so unreasonable as to satisfy the high threshold of “Wednesbury” or “Stardust” unreasonableness (Associate Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] I KB 223; State (Keegan v Lysaght) v Stardust Victims’ Compensation Tribunal [1986] IR 642). In the instant case, an Inquiry arising from the anaesthetic care afforded to a surgical patient who had suffered catastrophic complications had resulted in five findings of poor professional performance and two findings of professional misconduct against the consultant anaesthetist. The Fitness to Practice Committee of the Medical Council (“the Committee”) recommended that a suite of conditions aimed at “re-education and training in the management of anaesthesia” be attached to the name of the retention of the registrant’s name on the Register. The matter then went before the Medical Council who followed the recommendations of the Committee. During the subsequent application by the Medical Council pursuant to Section 76 of the 2007 Act (the respondent having chosen not to appeal the decision of the Council under Section 75 of the 2007 Act), Kelly P indicated that three issues would require further submissions before an order could be granted:

1. The adequacy of the sanction recommended to the Court by the Council having regard to the findings made and evidence given to the Committee;
2. Assuming that the sanction is adequate, whether the protection of the public was appropriately addressed by the respondent being permitted to continue to practise medicine whilst conditions attaching to her registration remain unfulfilled;
3. Even if those two requirements were satisfied, whether notification of the imposition of these conditions in the limited way intended by the Council was adequate since individual patients coming into contact privately with the doctor (who were not deemed to be ‘employers’ for the purposes of a particular proposed condition) would not be notified by her of the conditions.

Having contrasted the Courts’ broad powers under Section 75 with the narrower jurisdiction afforded under Section 76 of the 2007 Act, Kelly P referred to his decision in M.A.G.A., which both parties to the application agreed provided the correct construction of Section 76, namely that the Court would have to be satisfied of either a procedural impropriety, a lapse of the norms of constitutional and natural justice, or a decision on the part of the Council which is one which no reasonable Council could come to were it to choose not to confirm an application by the  Medical Council arising in the absence of an appeal of the Board’s decision by a registrant. Having ruled out any procedural impropriety or failure to observe the standards of constitutional and natural justice, the only issue remaining was one of whether or not the Council’s decision was so unreasonable as to warrant the court refusing its confirmation – an issue which would involve consideration of the three matters identified above. In considering whether or not the Council’s decision in this case was one which no reasonable Medical Council would have made, the Court was invited by the Council to take the following into account:

1. The Medical Council is a body with considerable competence and experience in making decisions of this sort;
2. Council members and Committee members undergo appropriate and regular training in this specialised field of decision making;
3. Council members and Committee members have the benefit of detailed written guidance on sanctions being imposed in a document which was updated on a regular basis;
4. The Medical Council expressed the paramount consideration of the protection of the public which is its statutory mandate and explained why in its view that was adequately provided for in the sanction decided upon in this matter.

Kelly P came to the conclusion that the Council had not come to such an unreasonable conclusion as to warrant refusal of the order sought: “Given the limited jurisdiction conferred upon the court, my views as to the adequacy of the sanction, having regard to the serious failures of the respondent and the findings made against her, are not relevant. Although the sanction might be considered to be lenient or one which does not address the public interest and provide protection to the public as comprehensively as it might, it nonetheless cannot be regarded as so lacking in that regard as to warrant a refusal of this application. The Medical Council is of the view that the sanction proposed by the FTPC and affirmed by it is proportionate and adequately protects the public as it is framed and without the necessity of any suspension being visited upon the respondent. For the reasons urged upon me by both the Medical Council and the respondent, I conclude that the Council’s decision addresses all relevant issues in such a way as would not justify a refusal of this application.” Whereas this most recent judgment confirms the construction of Section 76 as set out in the M.A.G.A. decision, and therefore highlights the degree of deference exercisable by a court when deciding whether or not to confirm the decision of a regulator such as the Medical Council, it was not necessary to consider the question as to what powers the Court would have if the order were to be refused. The question of whether or not a medical practitioner with serious misconduct findings against him could walk away scot free were the Court to refuse to confirm a decision of the Council remains unanswered. While concluding that it would be neither prudent or appropriate to suggest an answer in this case, Kelly P noted, albeit obiter, that “such an absurd result could hardly have been the intention of the legislature but may, nonetheless, be one unwittingly ordained by it”.