Radical Reform for Medical Practitioners
The New Medical Practitioners ActIt has been 30 years since the law relating to the regulation of Medical Practitioners has been substantially reviewed. Minister Harney announced commencement orders for various sections of the Medical Practitioners Act 2007 on the 2nd July 2008. It is a long awaited piece of legislation and its stated aim is to modernise and regulate the medical profession in order to create a more transparent and accountable system. There is a strong emphasis in the Act on improving relations with the public and achieving a balance between self-regulation and public accountability.
The Act introduces a number of significant changes. The functions of The Medical Council are now set out in much more detail. For the first time the Act expressly states the object of The Medical Council which is “to protect the public by promoting and better ensuring high standards of professional conduct and professional education, training and competence amongst registered medical practitioners”. The structure of the Council has been altered and there is now a lay majority. The Act gives the statutory basis to the Health Committee to support doctors when they are experiencing health problems which is to be welcomed. Professor Kieran Murphy has been elected the President of the new Council who will have a great deal of work ahead in implementing new structures required under the Act.
So what happens when a complaint is made about a registered medical practitioner?
If the complaint is made prior to the 2nd July 2008 the complaint will be dealt with by the old Fitness to Practise Committee under the Medical Practitioners Act 1978 i.e. the Fitness to Practise Committee with medical majority will decide whether or not there is a prima facie case for the holding of an Inquiry.
Complaints made after the 2nd July are referred under the 2007 Act to a new Committee known as the Preliminary Proceedings Committee (PPC) on one of more of the grounds set out below:-
a) professional misconduct;
b) poor professional performance;
c) a relevant medical disability;
d) a failure to comply with a relevant condition;
e) a failure to comply with an undertaking requested by The Fitness to Practise Committee under Section 67;
f) contravention of any provision of the Act;
g) a conviction for an offence triable on indictment.
Hayes solicitors made submissions to the Minister in relation to the original draft Bill which allowed for complaints to be made as a result of a doctor’s “emotional disturbance” and submitted that this was too wide ranging. The Minister agreed to remove that wording and the only grounds for complaint are set out in a) to g) above.
The PPC has a medical majority and decides whether there is sufficient cause to warrant further action being taken in relation to the complaint. The PPC may refer the complaint onto another body if it deems it appropriate. It can ask the complainant to give them further information or to verify the information by Affidavit or otherwise. The PPC then gives notice in writing to the doctor of the nature and the name of the complainant and the doctor can then supply any information that he or she deems relevant to the Committee. The PPC can then decide:-
a) that there is no sufficient cause to warrant further action being taken;
b) that the complaint should be referred to another body, authority or professional competence scheme;
c) the complaint is one that could be resolved by mediation or other informal means.
It then informs the Council of their opinion and the Council is the ultimate arbitrator of what action should be taken.
Where the PPC is of the opinion that there is a prima facie case to warrant further action being taken or the Council directs that further action should be taken then the complaint is referred to the Fitness to Practise Committee.
If the complaint is referred onto the Fitness to Practise Committee details of the charges are given in writing to the practitioner and the hearing is conducted in public before the Fitness to Practise Committee which has a lay majority.
The Fitness to Practise Committee can, at any time, if the doctor consents to censure or remedial action:-
a) request him or her to undertake not to repeat the conduct again or
b) request the practitioner to undertake to be referred to the Professional Competence Scheme and undertake any of its requirements or
c) request the practitioner to consent to undergo medical treatment.
The Fitness to Practise Committee makes a report to the Council on its findings as to whether any allegation is proven and “such other matters relating to the doctor as the Committee considers appropriate”. If the Committee finds that no allegation is proven the Council will dismiss the complaint. If the Committee finds that any allegation is proven the Council decides on the appropriate sanction including;
- advice, admonishment or censure;
- censure and fine not exceeding €5,000;
- attachment of conditions to the retention in the Register; the transfer of the doctor’s registration to another division in the Register;
- suspension for a specified period; cancellation of registration;
- prohibition from applying for a specified period for the restoration of a practitioner’s registration.
Under the old Act the only sanctions available to the Council were advice, admonishment or censure, suspension or erasure from the register.
The Council’s decision, other than advice, admonishment or censure, must be confirmed by the High Court.
An Appeal is allowed of every decision of the Council within 21 days, except for the imposition of a censure, advice or admonishment. It is surprising that this Section was not amended following the Prendiville/Murphy decision in which there was (implicit) criticism of it by Judge Peter Kelly. It remains to be seen whether the Minister will bring in an amendment to the Act following that decision.
The Minister stated that the hearings in public are designed to meet today’s standards of openness and it is hoped that that will be the case rather than the opposite which may have the effect of reducing confidence in the medical profession given the tendency of the media to sensationalise any evidence given during the course of these hearings.
Finally, the remaining sections of the Act including those relating to registration, medical education and training and a maintenance of professional competence will be commenced over the coming months.
If you have a particular interest in this area and wish to find out more please contact
Caroline Crowley
Partner
ccrowley@hayes-solicitors