Killian Flood BL

About this case:

• Citation:
  [2021] IEHC 246
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Mary C. Irvine

The doctor claimed that the pandemic was a hoax and that his actions were protected by his status as a conscientious objector. Giving judgment in the matter, President Mary Irvine applied the test in O’Ceallaigh v. An Bord Altranais [2000] 4 I.R. 54 and held that the case against the doctor was sufficiently strong and serious to warrant a temporary suspension from the register.

Background

In September 2020, the Medical Council received a complaint regarding the conduct of Dr Gerard Waters, the doctor in the case. A patient of Dr Waters claimed that he was “treated to a barrage of nonsense” about the Covid-19 pandemic when he attended the surgery. Specifically, Dr Waters claimed that the pandemic was a hoax and that the State was “scamming people”. Further, Dr Waters claimed that mask-wearing was causing illness.

After Dr Waters was informed of the complaint against him in October 2020, he issued a prolix letter to the Medical Council outlining his views in relation to the impact and danger of Covid-19. The letter was full of blanket statements which, although presented as verifiable facts, were at odds with official health guidelines. Dr Waters claimed that he had done his research on the effects of Covid-19 and said that any doctor who failed to conduct the same research was guilty of wilful negligence.

Further letters were exchanged where the Medical Council expressed concerns that Dr Waters was not adhering to best professional practice. In February 2021, Dr Waters went on the radio show Liveline and claimed that he would not administer the vaccine to his patients because he was a “conscientious objector”.

When vaccination preparations were being made for the over-85 cohort, Dr Waters failed to provide contact information to the HSE for them to get the vaccine.

Following a meeting of the Medical Council, it was determined that an application would be made under section 60 of the Medical Practitioners Act 2007 to temporarily suspend Dr Waters while his was under investigation for professional failings. Dr Waters attended the meeting and confirmed that no one in his surgery complied with public health measures. Further, it was established that he did not refer his patients for Covid testing, even if they presented with symptoms.

High Court

In a judgment delivered last month (but only made available yesterday), Ms Justice Irvine granted the application to suspend the doctor from the register on a temporary basis. The court noted that it had to balance the right of the public to be protected from a doctor who posed a risk to their care/welfare with the right of the medical practitioner to continue in practice until an adverse decision was made against him.

The court considered the case of O’Ceallaigh and held that the relevant considerations for the interim suspension were 1) the seriousness of the impugned conduct, 2) the strength of the case against the practitioner and 3) if the allegations were proven, whether the likely sanction would include suspension or strike off from the register.

The Medical Council relied on four headings in the application. First, it said that Dr Waters failed to comply with public health guidance by, inter alia, continuing a walk-in service with no social distancing or mask use. Second, he failed to refer patients for Covid testing. Third, Dr Waters said that he would not administer the vaccine. Lastly, the Council was concerned that Dr Waters was undermining the public health message with his views.

In response, Dr Waters claimed that his actions were protected due to his status as a “conscientious objector” under the Guide to Professional Conduct and Ethics for Registered Medical Practitioners (Amended) 2019. Second, he rejected that his actions caused negative effects on his patients and that there was already a huge amount of vaccine scepticism in the public.

Ms Justice Irvine held that it was unlikely that the doctor’s views were protected by his claims of conscientious objection. The court accepted in principle that a doctor could validly object to administering a vaccine they considered to be unsafe, but that this would be very difficult to defend. This was particularly so where Dr Waters had not taken any steps to inform his patients of his conscientious objection.

Further, it was unlikely that Dr Water’s conscientious objection would protect him from following public health measures or referring patients for testing, the court said. Where the doctor did not deny that Covid-19 is contagious and could kill, Dr Waters would also have difficulty relying on his rights.

The court said that Dr Water’s claim that his actions did not place his patients at significant risk was hard to sustain, given that his actions could lead to undetected cases which might spread throughout the community.

Turning to the potential sanction in the case, the court considered that Dr Water’s behaviour (if proven) would likely lead to a permanent or temporary strike off from the register because of his dangerous actions and his unwillingness to remedy the situation. As such, the court held that the O’Ceallaigh test had been satisfied.

In granting the application, Ms Justice Irvine considered certain undertakings which were offered by Dr Waters as a substitution for suspension. However, the court held that the undertakings were too vague or subjective to be effective. Further, it was noted that, in relation to certain undertakings to cooperate with vaccination information and Covid testing referrals, Dr Waters failed to provide any detail as to how they could be properly implemented.

Finally, the court held that any consequences of the suspension for Dr Water’s patients were outweighed by the risks that his continued conduct posed to them. His patients would “be at significant risk of remaining undiagnosed and untreated or having their diagnosis or treatment delayed,” the court said. A suspension was also not disproportionate to Dr Water, who made no claim of financial hardship.

Conclusion

The court granted the application to temporarily suspend the doctor from practice.