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‘We need to reform the regulator’

By Dermot - 11th Oct 2017 | 6 views

Doctors have made no secret of their problems with the Medical Practitioners Act 2007. The two major changes heralded by the legislation — the creation of a lay majority on the Medical Council and the commitment to hold fitness to practise (FTP) cases in public — have attracted repeated criticism. A conference titled ‘Medical Regulation in Ireland: Is it Fit for Purpose?’ was held in Dundrum, Dublin, earlier this month, to assess the impact of the legislation 10 years after its enactment.

Opening proceedings, moderator Dr David Walsh of the Sims Clinic said the idea behind the conference was that medical regulation could be improved. He stated the issues of FTP and medical regulation affect all doctors.

The first speaker, Mr Felix McTiernan, Noble Law Solicitors, said the relationship between a doctor and patient is not merely a legal relationship, but one based on trust. “Any system of regulation for the medical profession that undermines that trust has got to be wrong,” Mr McTiernan stated.

Looking at the stated purpose of the Medical Practitioners Act 2007, he said its aim is to better protect the public in their interactions with doctors. “We say that is a very bad starting point for a regulatory regime in relation to medical practise, because it immediately drives a wedge between the doctor/patient relationship based on trust and sets the doctors up as the enemies of the public, and immediately says, ‘you the public, you need protection from your interaction with doctors’.”

Mr McTiernan also had strong words to say about the effect holding FTP cases in public has on doctors. “It has proven over the last 10 years to be extremely unfair to doctors, exposed to the full glare of media comment — often unfair, inaccurate and downright defamatory comments —  at a time when they are involved in a public process to defend their reputations and ultimately their livelihood.”

Another criticism focused on the legal immunity the Council and its committees have in exercising their functions under the Act.

“This leads to a situation where if you are a doctor against whom an adverse finding has been made, and subsequently you go to the trouble and expense of trying to be vindicated in the High Court or in some cases the Supreme Court, and you are vindicated, you have no redress against the Medical Council,” according to Mr McTiernan.

“There should be a system of public apology by the Medical Council and there should be a system of compensation. That would help to redress the imbalance that arises from the current statutory immunity of the Medical Council and its members.”

<p class=”subheadMIstyles”>Corbally case

One of the keynote speakers at the conference was consultant paediatric surgeon Prof Martin Corbally, who was found guilty of poor professional performance by an FTP hearing, but subsequently cleared of wrongdoing by both the High Court and the Supreme Court. Prof Corbally is currently Professor and Chairman, Department of Surgery, RCSI Bahrain and Chief of Staff, King Hamad University Hospital, Bahrain.

His FTP case, which attracted significant media coverage at the time, involved an incorrect tongue-tie procedure being conducted by a Senior Registrar on a young patient of Prof Corbally’s in Our Lady’s Children’s Hospital, Crumlin. The error, due to an administrative system fault involving the name of the procedure, was discovered and rectified on the same day and no adverse outcome was suffered by the patient.

Prof Corbally admitted he was “very disappointed, of course, and distressed that the complaint had been made”, given he had apologised to the patient’s parents and enacted changes to hospital procedures to ensure the same mistake would not happen again.

He strongly criticised the manner in which his FTP case was conducted, in particular the testimony of the expert witness.

“To my mind, the flaws of the FTP Committee and the PPC [Preliminary Proceedings Committee] are that they have a lay majority,” he told the conference.

“True peer review is vital to fairness. With great respect to general practitioners, it is completely inappropriate that a general practitioner would chair an FTP Committee on the workings of a hospital consultant, and certainly one with the onerous duties I had. In my mind, general practitioners should judge general practitioners; surgical consultants should judge surgical consultants. I also believe that accepting the opinion of a flawed expert is unbalanced and illogical, unless you want to be so.”

He recommended that two expert witnesses should be used in future cases and that trainees who are subject to an FTP case are provided with legal aid.

Prof Corbally labelled the Council as “arrogant” and suggested it adopt the procedures of the UK’s General Medical Council in cases of alleged misconduct, as the UK body has a separate enquiry system, so it does not continue to act as “judge, jury and executioner”.

He also criticised the fact that the Council is not obliged to apologise under the Act, while highlighting the enormous psychological impact on doctors of being involved in an FTP case.

“You feel the light is shining on you. You feel embarrassed, you feel ashamed, you feel inadequate. At some point you say, ‘is this really me. Am I this person? Am I a butcher?’ I have been called that. ‘Should I be struck off?’ That was requested. The level of intense, malicious reportage in the media was really quite extraordinary and I felt very unfair, considering my role in this entire case.”

Dublin GP Dr Marcus De Brun also spoke about his stressful experience of dealing with the Council and being subjected to an FTP hearing (no adverse findings were ultimately made against him), which was recently detailed in a comprehensive interview in this newspaper (<strong><em>Medical Independent</em></strong>, 25 September).

“The reality for all of us is, the Medical Practitioners Act as it stands is not only unworkable, but it is also destructive,” according to Dr De Brun.

“The process, which I was initially completely oblivious to or disinterested in, is actually a dangerous, destructive process for all of us. And you will only ever know it when the light shines on you.”

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