Doctor fails in appeal over challenge to poor performance finding

Arising out of complaint about Dr Ahmed's treatment of the man, a Medical Council fitness to practice committee found in 2015 he failed to request basic tests
Doctor fails in appeal over challenge to poor performance finding

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 Dr Saqib Ahmed's appeal against the High Court dismissal of his judicial review challenge to the finding made by a Medical Council fitness to practice committee in 2015. His challenge was also on the grounds that there was no right to appeal Medical Council findings which don't involve the attachment of conditions to a doctor's registration and that was also dismissed.

Dr Ahmed was in November 2012 a junior registrar in oncology in University Hospital Limerick to which a 28-year-old man was transferred from a district hospital.

Abdonimal and back pain

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 complaint about Dr Ahmed's treatment of the man, a Medical Council fitness to practice committee found in 2015 he 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.

No entitlement to appeal

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 also 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.

Consequences

The finding of poor professional performance may have devastating consequences for a doctor, it was argued.

In February 2018, the High Court dismissed his challenge. It found there was "clearly evidence before the Medical Council inquiry upon which it could reach the decision it did".

The High Court also found, from previous court decisions, he was not entitled to a declaration of incompatibility of the law with the ECHR.

He appealed to the CoA. The respondents opposed the appeal.

On Wednesday, Ms Justice Aileen Donnelly, on behalf of the three-judge CoA, dismissed the appeal in its entirety.

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 also concluded the relevant parts (Section 71 and 75) of the Medical Practitioners Act, 2007 were not repugnant to the Constitution on the ground that the appellant was not afforded a right to appeal and in those circumstances it was not a violation of his ECHR rights.

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