Medical Practitioners Act 2007
The Medical Practitioners Bill was signed into law in 2007 by President Mary McAleese. The purpose of the Act may be described as better informing the public in its dealings with medical practitioners and introducing better measures for the registration and control of medical practitioners.
The Complaints Procedure
The legislation has substantially expanded the grounds upon which a complaint may be brought. Previously, the Irish Medical Council (IMC) could only hear complaints based on alleged professional misconduct and lack of fitness to practice by reason of physical or mental disability.
The new legislation provides for a number of additional grounds including:
- Poor professional performance
- Failure to comply with an undertaking
- A criminal conviction in the state or elsewhere.
- Failure to comply with a condition of registration or contravention of a provision in the new legislation
The expansion of the grounds for complaint to include poor professional performance allows patients to come forward where a legitimate complaint exists, without having to prove negligence or error of a nature that would constitute professional misconduct.
Complaints - Filter System
The Medical Practitioner's Act also establishes a Preliminary Proceedings Committee (PPC). The PPC will filter complaints that are made against medical practitioners, and, if it is deemed necessary, the committee will refer the complaint to the Fitness to Practice Committee for hearing.
Legal Representation at Fitness to Practice Inquiry
The Act does not provide for legal representation at any Fitness to Practice Inquiry on behalf of the complainant. In addition, if a complainant seeks legal representation, they will have to bear their own costs, as the Irish Medical Council states that any costs borne are the responsibility of the individual who is advancing a complaint.
The injustice of such a scenario is clear. Whilst the complainant is cross examined under oath by legal professionals experienced in the area of medical malpractice they will typically have no such assistance in putting forward their case.
Complaints of defective treatment, for example, require knowledge of the generally approved practice in that area. This would be readily apparent to an experienced medical malpractice lawyer but is unlikely to be within the knowledge of a complainant. Whilst the members of the Committee are at liberty to ask questions of all parties, the complainant does not have the luxury of a representative to highlight elements of the case that they may wish to emphasise.
The new legislation should have made legal representation at such hearings a mandatory entitlement of all complainants. There should also be provisions whereby the reasonable costs of such representation are met by the State. The provision of such service in all instances where a complaint is serious enough for section 63 of the new legislation to be invoked, i.e. referral by the PPC to the Fitness to Practice Committee, would seem to be a natural requirement in ensuring that a complaint is properly explored and dealt with.
Fitness to Practice Hearings in public
The legislation provides that fitness to practice hearings shall be heard in public unless the medical practitioner cited or a witness about whom personal matters may be disclosed requests that all or part of the hearing be conducted other than in public and the Committee is satisfied that it would be appropriate to do so.
The concern amongst the medical profession is that public hearings will lead to sensational media coverage with perhaps an over emphasis on the identity of the medical practitioner involved and insufficient coverage of the attempts to adhere to recommended practices and any mitigating circumstances that may have been involved.
The contrary view, and in this writers opinion, the correct one is that public hearings will remove the cloak and dagger secrecy attached to the inquiries and will allow the public to have a greater understanding of the exacting standards required in the medical profession.
Such openness and transparency should in the long run help to alleviate public concerns about the manner in which these inquiries are conducted and may in fact improve the public perception of the regulation of the medical profession.
Given the newness of the legislation it is difficult to predict whether these hearings will proceed in public. Much will depend on the Committees attitude to submissions made to have the matter determined in camera. It is hoped that this discretion is not overly relied upon by the Committee as it would be contrary to the spirit and intended purpose of the legislation.
Until such time as the legislation is enacted and such inquiries are held in public there will remain an inevitable public perception that the inquiries are weighted in favour of the doctor complained of. The new legislation provides that the Fitness to Practice Committee shall have a majority of lay persons. This fact, allied to public hearings, will ensure that such a presumption is no longer easily upheld.
However the failure to provide legal representation for a complainant at such hearings represents a significant omission which needs to be addressed as soon as possible to ensure that the rights of those with legitimate reason for complaint are properly vindicated.
To make a claim
If you believe that you may have a legal claim relating to this Act or would like to discuss your entitlements under the Act, please contact Malcomson Law by calling 01 8744422 or by filling out an Online Enquiry Form. A solicitor who specialises in Medical law will contact you to advise you of your rights and entitlements.