Can a registered medical practitioner voluntarily come off the Register at a time when the Medical Council is actively considering whether to re-open a complaint against that practitioner, which the Council had previously dismissed as not showing sufficient cause?
The material background to the matter is as follows. The Applicant is the son of Eileen Hyland (Deceased) who died in Cork University Hospital on 5th May, 2017. The late Ms. Hyland had been diagnosed with thyroid cancer in July 2016 and was under the care of a number of practitioners in Cork University Hospital including the Notice Party, Dr. Frederik Vernimmen, Consultant Radiotherapy Oncologist (“the Notice Party”), and Dr. Derek Power, Consultant Oncologist (“the other consultant”).
Following her death, Ms. Hyland’s family were concerned about the medical care received by Ms. Hyland at the end of her life and instructed solicitors to investigate whether or not any of the medical treatment she received was negligent. The family obtained expert reports in that regard and instructed their solicitors to issue proceedings in the High Court on 1st August, 2018 against the Notice Party and the other consultant. Those proceedings were settled, with the settlement in question ruled by Mr. Justice Cross in the High Court on 21st January, 2020.
On 27th July, 2018, the Applicant submitted a complaint to the Medical Council (“the Council”) alleging failings in the treatment and care on the part of the Notice Party and the other consultant, alleging that the late Ms. Hyland “needlessly passed away as the treatment she needed was not offered or provided at CUH”. It was alleged, in short, that the late Ms. Hyland was wrongly treated with external beam radiation for her thyroid cancer as opposed to Radioactive Iodine treatment, which treatment could have been obtained abroad for her. The late Ms. Hyland was a dialysis patient and her siblings made the case that the fact that she was a dialysis patient was no bar to her being provided with Radioactive Iodine treatment (and information in relation to the option of same).
The PPC met on 30th April, 2019 and decide:
“The Committee formed the opinion pursuant to section 61(1)(a) of the Medical Practitioners Act 2007, that there was not sufficient cause to warrant further action being taken in relation to the complaint as there was no prima facie evidence of professional misconduct or poor professional performance on the part of Dr Frederik Vernimmen or Dr Derek Power (“the other consultant”).
The PCC’s decision was endorsed by the full Council.
Following the decision of the High Court in the civil action, the applicant and son of the deceased wrote to the Irish Medical Council, submitting new evidence and asking the council to re-open the investigation in to Dr Vernimmen. The PCC decided to consider the request to re-open the investigation, however prior to doing so, Dr Vernimmen wrote to the Medical Council asking to be removed from the register voluntarily.
The PCC concluded that it “noted that Dr. Frederik Vernimmen has voluntarily withdrawn from the Register of Medical Practitioners and as such, the complaint against him cannot be reopened as he is no longer a registered medical practitioner as defined in the Medical Practitioners Act, 2007”.
The Applicant sought a number of reliefs by way of judicial review. However, Mr Justice Cian Ferriter, in refusing the relief sought, said:
“While I am sympathetic to the Applicant’s position, and do not doubt for a moment his bona fides, I need to have regard to the wider implications of the interpretation contended for by him. In my view, to adopt the construction urged on his behalf would be to create undue uncertainty and would allow complainants to unilaterally force a practitioner who wishes to come off the register to remain on the register by the mere expedient of lodging an application (and potentially multiple such applications) for the re-opening of a complaint investigation notwithstanding that the PPC and Council have determined that the original complaint was unmeritorious.
In relation to the contention that any registered medical practitioner could seek to frustrate the operation of the investigation provisions of the 2007 Act by seeking to apply to come off the Register after an application has been made to re-open a rejected complaint but before the Council has ruled on whether or not the complaint should be re-opened, in my view, it needs to be borne in mind that it is a very serious step for a registered medical practitioner to seek to come off the Register as, from that point onwards, he or she is not entitled to practice medicine. It is difficult to imagine that being becoming a likely or regular step in response to applications to re-open rejected complaints for the purpose of avoiding any potential re-opened investigation that might ensue.