Doctor loses appeal against poor performance finding
Posted on 28th July 2021 at 21:20
Court of Appeal dismisses challenge to finding by Medical Council regarding 28-year-old patient
A doctor has lost an appeal over a finding against him of poor professional performance involving the care of a 28-year-old patient.
The Court of Appeal (CoA) dismissed Saqib Ahmed’s appeal against the High Court’s dismissal of his challenge to the finding, made by a Medical Council fitness to practice committee in 2015.
His judicial review challenge was brought on grounds including there is no right to appeal Medical Council findings which don’t involve the attachment of conditions to a doctor’s registration.
All grounds of challenge were dismissed.
In November 2012, Dr Ahmed was a junior registrar in oncology in University Hospital Limerick when a 28-year-old man was transferred there from a district hospital.
A CT scan in the district hospital had shown a large abdominal mass which was apparently rapid growing. The patient had suffered for the previous six to eight weeks with abdominal and back pain, and weight loss.
Arising out of a complaint about Dr Ahmed’s treatment of the man, a Medical Council fitness to practice committee found in 2015 the doctor failed to request basic tests, including but not limited to, blood test, and/or urine, and/or kidney function.
The committee dismissed several other allegations of professional misconduct but found the complaint regarding tests amounted to poor professional performance
Dr Ahmed denied all the allegations.
As a sanction Dr Ahmed received an “advice” in writing from the Medical Council but it did not impose conditions on his registration. When a sanction does not include any conditions, a doctor does not have an entitlement to appeal against the finding.
Dr Ahmed brought a High Court judicial review of the finding itself and to the constitutional validity of part of the Medical Practitioners Act 2007 covering sanction and appeal entitlements. He claimed they were not compatible with the European Convention on Human Rights (ECHR). The case was against the Medical Council, the fitness to practice committee and the State.
Among his arguments were that the finding against him was irrational and/or unreasonable, having regard to the evidence given at the hearing before the committee.
He argued the absence of an appeal to the High Court was a violation of his constitutional and convention rights in that it was an error to focus on the sanction, which is minor in nature, rather than the finding itself which was serious.
‘Evidence’ before council
The finding of poor professional performance may have devastating consequences for a doctor, it was argued.
In February 2018, the High Court found there was “clearly evidence before the Medical Council inquiry upon which it could reach the decision it did”.
It also ruled he was not entitled to a declaration of incompatibility of the law with the ECHR.
On Wednesday, Ms Justice Aileen Donnelly, on behalf of the three-judge CoA, dismissed his appeal against that decision.
She concluded there was sufficient evidence before the committee to reach a factually sustainable conclusion that the facts of the single allegation against him were proven and amounted to poor professional performance.
The decision was rational, reasonable and proportionate as was the imposition of the sanction, she said.
She found Dr Ahmed was not granted leave to apply for judicial review on the basis of breach of his right to equality before the law under the Constitution.
She concluded the relevant parts (section 71 and 75) of the Medical Practitioners Act, 2007, providing for no appeal were not repugnant to the Constitution and did not violate his ECHR rights.
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