The High Court has quashed decisions that found doctor Samuel McManus guilty of professional misconduct over retrospective changes to a patient’s medical records, ruling that the inquiry process may have disadvantaged him.
In a judgment delivered on 14 August 2012, Kearns P. found that the Fitness to Practise Committee had relied on evidence from Professor Patricia Casey, the complainant and a witness to fact, as if it were expert evidence on professional standards. The committee had not indicated that it would treat her evidence that way, and McManus’s cross-examination of her was based on the understanding that the committee’s expert witness would provide the material expert evidence.
The case arose from the treatment of patient K.W., who died after attempting suicide at the Mater Hospital in April 2008. McManus admitted making retrospective changes to the patient’s records after a further suicide attempt, and accepted that he should have made a clearly marked retrospective note instead. The original entry referred to current suicidal ideation and a high suicide risk; the amended entry said the patient denied current suicidal ideation and described a high suicide risk attempt.
The committee found five of seven allegations proven and said they amounted to professional misconduct. The Medical Council imposed the lesser sanction of advice, rather than the admonishment recommended by the committee. The court noted that the sanction did not give McManus a statutory right of appeal. His judicial review challenged the decisions on grounds including unfair procedure, inadequate reasons and irrationality.
The court rejected several grounds. It held that the committee gave adequate reasons for its findings and was not required to follow the legal assessor’s advice or provide a detailed account of why it rejected it. The court also found there was sufficient evidence before the committee, including evidence from Casey and a nurse, to support its conclusions. It said the committee’s refusal to stop the case after the Council’s evidence, because it wished to hear evidence from McManus, was not objectionable in the context of an inquiry; this did not require him to testify or alter the burden of proof.
The decisive issue was fairness. Having chosen to call an expert, the committee had to contend with that expert’s evidence, which was substantially exculpatory. The court considered it unfair to disregard that evidence and elevate Casey’s evidence to expert status without notice, when she had been presented as a factual witness and complainant. The court said McManus may have been appreciably disadvantaged in his opportunity to cross-examine her and defend himself.
The High Court therefore quashed the decisions of both respondents. The judgment did not determine the constitutional challenge concerning the absence of a statutory appeal; that question had been held over in case McManus lost his other arguments.