This was, partly, the question before Mr Justice Cian Ferriter in the case of Hyland v Medical Council of Ireland (Approved) [2021] IEHC 776 (09 December 2021). 

Facts

The material background to the matter is as follows. The Applicant, James Hyland, 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, Dr. Frederik Vernimmen, Consultant Radiotherapy Oncologist, and Dr. Derek Power, Consultant Oncologist (“the other consultant”).

Following her death, Ms. Hyland’s family were concerned about the medical care received by her 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 Dr. Vernimmen 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 Dr. Vernimmen 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).

Medical Council

The Preliminary Proceedings Committee (“PPC”) met on 30th April, 2019 with the following outcome:

“The Committee formed the opinion pursuant to section 61(1)(a) of the Medical Practitioners Act 2007, that there was no 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 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 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 (he was no longer practising in Ireland and had moved to Belgium to retire).

The PCC met again on 9^th  September, 2020 and concluded that it “noted that Dr 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”.

Appeal

The Applicant, James Hyland, sought a declaration from the High Court to the effect that the complaint has not been disposed of or otherwise dealt with, in the alternative, the complaint has been reopened, the Medical Council shall not consider the application of Dr Vernimmen to have his registration removed from the Register until such time as the that have decided whether or not Dr. Vernimmen’s registration should be removed.

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.

Commentary

This is a decision in the High Court of Ireland and therefore not directly relevant to UK jurisdiction. It might, nonetheless, be of interest to UK medical professionals because the ruling does raise an interesting perspective on voluntary erasure.  Clearly, in this case, the Medical Council and complainant took very different views on what “ongoing investigation” constitutes.

It is accepted practice in the UK that voluntary erasure will generally not be granted until there is certainty about the facts of the case being investigated. This has been confirmed in numerous cases (see: Voluntary erasure not enough to protect the public – PSA v GMC).

Mr Justice Ferriter, in this case, took a different view to the UK courts on the question of voluntary erasure taking the view that refusing voluntary erasure “unilaterally force a practitioner who wishes to come off the register to remain on the register”.  He recognised that voluntary erasure is, in itself, significant, saying “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”.

Many doctors will have sympathy with the opinion of Mr Justice Ferriter.  This might particularly the case where doctors are subject to malicious complaints or complaints without merit.  In many of the aforementioned circumstances, the GMC is likely to refuse and application for voluntary erasure, effectively forcing the doctor to remain on the medical Register for months whilst the complaints are investigated.