High Court considers interim suspension of GP

In a recent High Court judgment^[1] the President of the High Court considered an application of the Medical Council to suspend a doctor’s registration from the Register of Practitioners on an interim basis further to section 60 of the Medical Practitioners Act 2007 (the “2007 Act”).

Background

The respondent was a general practitioner and the Medical Council received a complaint from one of his patients in September 2020. The complaint concerned a consultation that the complainant had with the GP, Dr Waters, and certain representations which he made in respect of the coronavirus pandemic. During the consultation Dr Waters was said to claim that the pandemic was a hoax and that the wearing of masks was causing illness.

Having been informed of the complaint, Dr Waters sent a detailed response, outlining that he had set out his point of view on Covid-19 but that he had undertaken to do so in a reasoned manner. His letter also stated his views in respect of the pandemic more generally, including the Government’s handling of the pandemic and made allegations of ‘media propaganda’ about the official death toll. He made many bald assertions which are known to be at variance with official health guidelines.

Dr Waters sent further emails referring the Medical Council to various articles, other documents and online publications in support of his suggestions. In response, the Medical Council noted its concern that the doctor was not adhering to best professional practice and sought assurances that he would follow HSE Guidelines on the coronavirus. Dr Waters continued to repeat his views in correspondence whilst the Medical Council continued to seek the assurances above.

Dr Waters subsequently spoke on the radio news programme Liveline and stated that he would not administer the Covid-19 vaccine because he was a “conscientious objector” and he told the Irish Times this as well. He also contacted the HSE to say he would not administer the vaccine, to which the HSE subsequently requested that he provide details of his patients aged 70 to 85. This information was not provided.

The Medical Council subsequently had a meeting with Dr Waters to determine whether it was required to apply to the High Court under section 60 of the 2007 Act to temporarily suspend him while he was under investigation. Dr Waters was in attendance but not legally represented. At the meeting he reiterated his views on the pandemic. He made contradictory remarks on testing where he initially said he would not willing to refer people for Covid-19 testing because it was “experimentation of humans”, but later said he would be willing to refer people for testing. He also mentioned that neither he nor any of his staff wore masks.

Following the conclusion of the hearing, the Medical Council decided to apply to the High Court under section 60.

Judgment

Section 60 of the 2007 Act states that:

“(1) The Council may make an ex parte application to the Court or 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 under this Part and, if applicable, Parts 8 and 9”

In this case, Ms Justice Irvine noted that before granting such an application which could have significant adverse consequences for the practitioner with respect to his livelihood and reputation, the Court must be satisfied that the suspension was necessary in order to protect the public. In doing so, the Court should take a number of factors into consideration.

Irvine J referred to other case law that outlined that such an order would only be granted in circumstances where there was no other order that would serve to protect the community, and that such interim suspensions should be reserved for exceptional cases. She also referred to the relevant considerations outlined in O’Ceallaigh v An Board Altranais^[2];

1. The seriousness of the conduct complained of;
2. The strength of the case against the practitioner; and
3. Whether the likely outcome, in terms of sanction, in the event of misconduct being established would be a strike off either on a definite or permanent basis.

The Medical Council made four separate points in respect of the seriousness of the conduct complained of:

1. That Dr Waters did not operate his practice in a manner which complied with public health guidance;
2. That he failed to refer patients for Covid-19 testing;
3. That he stated he would not administer the Covid-19 vaccine; and
4. That he is undermining public health messaging more generally with comments when he sees patients.

Dr Waters argued that he was a conscientious objector and drew the Court’s attention to the Guide to Professional Conduct and Ethics for Registered Medical Practitioners (Amended) 2019 (the “Guide”). Secondly, he argued that his actions had not caused negative effects on his patients and that there was already a huge amount of vaccine scepticism in the public.
Ms Justice Irvine outlined that were his conduct to be protected by the right to conscientiously object, he could not be suspended for exercising that right. However, she did not believe that his views were protected as he had not followed the Guide by informing his patients of his conscientious objection. Overall she stated that the evidence against Dr Waters was strong and could well be considered to amount to a serious breach of professional conduct.

With respect to the potential sanction, Irvine J believed that if Dr Water’s behaviour were proven it would likely lead to a permanent or temporary strike off as a result of his dangerous actions and his unwillingness to remedy the situation; therefore the O’Ceallaigh test had been met and the application could be granted.

Ms Justice Irvine also considered certain undertakings which were put forward by Dr Waters instead of suspension. However, these were considered to be too vague or subjective to be of any use.

In granting the application, Irvine J also considered the impact upon his patients who would have to find another GP, particularly at a time when getting a new GP could be difficult. However, she believed that the adverse consequences of the suspension were outweighed by the risks Dr Waters posed to his patients, and that the health and safety of his patients would only be adequately protected by the granting of the suspension. She also viewed that any financial hardship or adverse consequences to Dr Waters himself was not disproportionate in the circumstances.

Therefore Ms Justice Irvine granted the relief sought by the Medical Council.

Conclusion

This case highlights interesting issues around suspension for the Medical Council, particularly in the context of Covid-19. It is clear that conscious objection can be an argument, but in this case the respondent’s actions did not meet the standards required for such a defence. The Court weighed the potential consequences for the respondent’s patients – and his livelihood – and held that the suspension was appropriate in the circumstances.

[1] In the matter of Section 60 of the Medical Practitioners Act 2007 and in the matter of a registered medical practitioner & on the application of the Medical Council between the Medical Council and De Gerard Waters [2021] IEHC 252

[2] [2000] 4 IR 54

For further information on this topic, please contact Laura Graham at lgraham@reddycharlton.ie