The High Court has refused a doctor’s challenge to a Medical Council finding of poor professional performance and its decision to advise him about his conduct. The case was a judicial review and constitutional challenge; the court refused all the relief sought.
The case followed a September 2010 visit by the doctor, Anthony Enobo Akpekpe, to Patrick Lowe at his home in Monkstown. Lowe had abdominal symptoms and significant disabilities. Akpekpe assessed him and concluded that he had a viral gastrointestinal illness. Lowe died at home about two days later. A post-mortem attributed his death to aspiration of bowel contents following an unrelieved small-bowel obstruction caused by an incarcerated hernia.
Lowe’s sister complained to the Medical Council. After an inquiry in February 2012, the Fitness to Practise Committee found one allegation proved as a fact and that it amounted to poor professional performance: that Akpekpe had failed to obtain an adequate medical history. It also found a separate allegation proved as a fact, but not amounting to poor professional performance. Four other allegations were not proved as facts. The Committee considered the performance to be at the lower end of poor professional performance and recommended advice. The Council decided to advise Akpekpe and to inform him and the public of the finding, citing its seriousness.
Akpekpe sought to quash the Committee’s finding and the Council’s decision. He also argued that the statutory scheme was unconstitutional because doctors receiving the least severe sanctions under section 71(a) had no statutory appeal, unlike practitioners receiving other sanctions. He said the finding and advice could damage his professional reputation and livelihood. The respondents argued that the sanction did not affect his right to practise and that the scheme protected doctors’ procedural rights while serving the public interest. No complaint was made about the fairness of the inquiry itself, and the challenge before the court had become a constitutional one.
Kearns P. held that advice was the least severe sanction and that the absence of an appeal for that sanction did not amount to unjust, unreasonable or arbitrary discrimination. The court said the Council had to weigh practitioners’ rights alongside the safety of patients and the public, and that the statutory process provided fair procedures. It also rejected the claims based on reputation and livelihood. The judge declined to consider an expanded European Convention argument, noting that no declaration of incompatibility had been sought and the Convention could not be relied on as having direct effect in national law.
The court did not rehear the disciplinary evidence or decide a new appeal on the merits. It refused every remedy sought, leaving the Committee’s finding and the Council’s advice decision in place.