Saturday 25 January 2020

GP says rights breached over lack of appeal against inquiry finding

Tim Healy

A DOCTOR claims there should be an appeal mechanism over a Medical Council inquiry finding that he was guilty of poor professional performance in his treatment of a patient who later died.

Dr Anthony Enobo Akpekpe (52), from Co Laois, was found guilty last February by a fitness-to-practice committee (FtPC) inquiry on a single count of having performed poorly by failing to take an adequate medical history of Patrick Lowe (74) at his home in Monkstown, Dublin, on September 13, 2010 He was cleared on five other complaints about poor professional conduct, the High Court heard.







Dr Akpekpe, who was working for a GP locum service Mediserve Ireland, diagnosed Mr Lowe, who was blind and suffering from brain damage, as having a tummy bug.







However, Mr Lowe died two days later and an autopsy showed he died as a result of inhaling faecal matter after vomiting as a hernia had obstructed his bowel.







Arising out of the FtPC finding, Dr Akpekpe was sanctioned under Section 71(a) of the Medical Practitioners Act 2007 which provides that the Medical Council "advises" him in relation to his professional conduct.







Dr Akpekpe has asked the High Court to quash the finding and he also seeking declarations that the 2007 Act is unconstitutional and in breach of his European Convention right to a fair trial because it denies him the right to appeal against the FtPC sanction.







In his action against the Medical Council, Ireland and the Attorney General, he also wants the court to rule the non-existence of an appeals mechanism is unfair and not justifiable.







Following legal submissions from all sides, High Court president Mr Justice Nicholas Kearns reserved his decision.







In submissions on his behalf, Dr Akpekpe's lawyers said he was a doctor of 30 years standing and a fellow of the Royal College of Surgeons and strongly disputed the finding of poor performance as well as the evidence given to the FtPC on which it was based. Evidence was given by another doctor, on behalf of the Medical Council, and by Mr Lowe's sister and carer, Elizabeth Lowe.







He claimed he is being treated unequally because other doctors who are more severely sanctioned, under other provisions of the 2007 Act, are entitled to appeal those findings to the High Court, whereas he is not.







His right to work and a livelihood have been substantially impacted by the FtPC finding as it will remain on his employment record and permanently damage his name and reputation as a doctor, it was claimed.







The Medical Council, in its submissions to the court, said the finding against him was properly made, was reasonable and was proportionate.







The Attorney General also opposed his claims and said there was no question that the absence of a right of appeal could ever in itself be such as to deny him his right to fair procedures, constitutional or natural justice.







It would would be unduly cumbersome to require judicial confirmation/appeal in all cases where a doctor's governing body chooses merely to advise, admonish or censure a practitioner, the AG argued.

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