In the recent case of Medical Council v Gerard Waters, the President of the High Court suspended a medical practitioner from the Register of Medical Practitioners under Section 60 of the Medical Practitioners Act 2007 due to a failure to implement and promote HSE guidelines in operation in respect of Covid-19 and a failure to follow the Guide to Professional Conduct and Ethics for Registered Medical Practitioners.
Under Section 60 of the Medical Practitioners Act 2007 (the Act), provides that 'the Council may make an ex parte application to the Court for an order to suspend the registration of a registered medical practitioner, whether or not the practitioner is the subject of a complaint, if the Council considers that the suspension is necessary to protect the public until steps or further steps are taken'. Section 60 provides for the suspension on an interim basis pending the outcome of a complaint. It is similar to that of the suspension of other professionals.
The Council received a complaint by a patient of the Respondent arising out of a consultation the patient had with the Respondent whereby it was alleged that the Respondent made certain representations and took certain actions regarding the Covid-19 pandemic. The allegations were in respect of communications by the Respondent that "Covid-19 is a hoax", that symptoms suffered by the Complainant were caused by the mask they wore, as well as further failures to refer patients for Covid-19 tests and undermining the best practice regarding the public health measures.
Following communications with the Council, the Respondent failed to confirm that he would adhere to HSE guidance and best practice regarding public health measures. The failure to provide the requisite assurances or information and the allegations raised serious issues as regards the safety of the public. Accordingly, the Council decided a section 60 application should be brought. It was noted that the Council deemed that the undertaking offered by the Respondent would not sufficiently protect the public as same would fail to deal with the practicalities of Covid-19, the provision of information and safety measures, the minimisation of risks to patients, and the urgency of risk to the public.
The President held that she was satisfied that the alleged conduct "was of sufficient seriousness to warrant the bringing of the present application" and granted the Council's application. The President provided an assessment of the case law on section 60 of the Act and noted that the Court must consider a range of factors, including:
- The hardship posed on the Respondent and other family members where an order is made removing their name from the Register;
- That 'interim suspensions should be reserved for those exceptional cases in which a doctor has to be suspended from practice because it is in the public interest to do so';
- That the Court balances the right of the public to be protected from a medical practitioner posing a risk to their care and welfare against the right of the practitioner to continue their practice until such time as any determinations are made as to the allegations;
The President referred to the O'Ceallaigh principles as the factors to be considered before any application for interim suspension be made and determined that the three criteria, being the seriousness of the conduct complained of, the strength of the case, and whether the likely outcome, in terms of sanction, would be strike off were satisfied. The Court held that "the allegations made against the Respondent may well be considered to amount to a serious breach of professional conduct and that the evidence against the Respondent should indeed be categorised as strong". Further, in respect of sanction it was noted that " the dangers inherent in the Respondent’s behaviour to date and his unwillingness to remedy the situation in a manner to remove his patients from unnecessary risk, it is likely that if found guilty of professional misconduct it is reasonable to conclude that he would be struck off the Register either for a definite period or on a permanent basis".
The Court also noted that while the Council had not acted with the 'utmost urgency' in bringing the application, the significant risks of the conduct forming the basis of the application cannot be determined by the speed at which an application is brought, and when determining the urgency of the application, the Court is to look mainly at the risk to any patients and the public.
The Court noted that whilst the proposed undertakings seemed potentially workable, there were no specific details included and due to a lack of sufficient terms and clarity, the proposed undertakings were too vague and not workable in the circumstances, particularly as it would not be possible to police any of the proposed undertakings effectively.
This case is noteworthy for the fact that the High Court has expressly suspended a medical practitioner for non-compliance with public health guidelines. In doing so, the President has reiterated the importance of the O'Ceallaigh principles and provided commentary on the factors to be considered in suspension applications as well as the role of undertakings in suspension applications. It also provides a useful insight into how the Court may approach future applications for suspension of professionals arising out of non-compliance with public health guidelines.