High Court: Health Service Executive practice of appointing unqualified consultants ‘scandalous’

About this case:

• Judgment:
  External link
• Judge:
  Mr Justice Peter Kelly

The “scandalous situation” which revealed the HSE to be a “law unto itself” in recruiting unqualified doctors was highlighted when Mr Justice Kelly, president of the High Court, struck off an unqualified Locum Consultant Radiologist who was found guilty of over 80 allegations in the space of three months employment at Cavan General Hospital.

Background

Pursuant to s.76 of the Medical Practitioners Act 2007, the Medical Council of Ireland commenced proceedings in the High Court to confirm its decision to cancel the registration of Dr Arjan Bhatia on the Medical Register.

Complaints were made in respect of 43 patients, which in turn contained a number of sub-allegations. Dr Bhatia was found guilty of over 80 allegations, all of which arose during the three months that he worked at Cavan General Hospital, where he was employed as a Locum Consultant Radiologist in 2014.

In April 2018, President Kelly struck Dr Bhatia off the register on foot of the Council’s recommendation, which was made after the Fitness to Practise Committee (FTPC) found Dr Bhatia guilty of multiple allegations of wrongdoing amounting to poor professional performance.

In considering the case against Dr Bhatia, President Kelly said there were grave concerns in relation to:

President Kelly said that this was not the only instance of a doctor being appointed to a consultant post while not being registered on the Specials Division of the Medical Register, and sought the Council’s assistance in getting a more comprehensive picture of the situation.

Specialist Division of the Register of Medical Practitioners

Considering the sworn testimony of the Chief Executive of the Council, Justice Kelly said that the evidence revealed a “disquieting situation where the Health Service Executive (HSE), in breach of its own rules, has been consistently appointing consultants who are not registered on the Specialist Division of the Medical Register in a wide variety of medical specialties and in many hospitals throughout the country”; jeopardising patients’ safety.

Under the Medical Practitioners Act 2007, the Council has the power to establish a Register of Medical Practitioners – including a General Division and a Specialist Division – however, evidence from the Council was that the Medical Practitioners Act 2007 does not confer on the Council any powers to prohibit practitioners not on the Specialist Division from assuming consultant posts. This is supposed to be policed by the HSE.

In 2008, the HSE specified that registration on the Specialist Division of the register was required for consultant posts, however President Kelly said that there were a significant number of practitioners in consultant posts who were not registered as required.

In Dr Bhatia’s case, the general manager of Cavan Hospital gave evidence that the hospital was unable to obtain a consultant radiologist registered on the Specialist Division; which President Kelly said accorded with other cases before the FTPC, and which was not uncommon in regional hospitals. As such, President Kelly said that it was worrying that the HSE’s own regulations were unlikely to have been complied with in respect of other locum posts.

In response to concerns raised by the Health Information and Quality Authority (HIQA), the Council described a “lacuna” in the Medical Practitioners Act 2007, in that the Council was limited in what they could do within the provisions of the Act. There was no definition of “consultant” in the Medical Practitioners Act 2007, and therefore the only legal requirement was that the doctor be on the register. For a consultant to be on the Specialist Division of the register was something within the HSE’s internal guidelines, and therefore the HSE was action contrary to its own guidelines in recruiting non-specialists.

HSE approach “scandalous”

Criticising the HSE’s approach, President Kelly said it could not be right that “a difficulty in recruiting doctors at consultant level is addressed even temporarily by appointing persons who are inadequately qualified for such posts”, and that this resulted in “patients’ lives, health and welfare” being jeopardised.

President Kelly said that the situation was scandalous, and that the HSE appeared “to be a law unto itself in this regard”; the Medical Council and the HIQA being unable to intervene in bringing the practice to an end due to the “lacuna” in the Medical Practitioners Act 2007.

Stating that the situation had to be resolved rapidly, President Kelly directed that the Registrar of the Court send copies of the judgment to:

Emphasising that he made no criticism of the Council which was powerless in this regard, President Kelly said he hoped that the relevant authorities would “bring an end to this lamentable situation forthwith”.