Complaint to Preliminary Committee
There are grounds on which a complaint may be made to the Preliminary Proceedings Committee by the Council or any person. The grounds are:
- professional misconduct
- poor professional performance
- a relevant medical disability
- a failure to comply with a relevant condition
- a failure to comply with an undertaking or to take any action specified in a consent given in response to a request
- a contravention of a provision of this Act (including regulations and rules)
- a conviction for an indictable offence in the State or in another jurisdiction
The complainant is to be kept informed of decisions taken and for the use of the services of a person appointed to assist with the investigation. Where the complaint relates to a conviction on indictment, it is referred immediately to the Council which may decide, if appropriate, to cancel the registration of the person, or refer the matter back to the Preliminary Proceedings Committee.
The Council may appoint persons, including members of its staff, to assist the Preliminary Proceedings Committee in the investigation of a complaint. The functions to be undertaken by and the powers of such persons are outlined. The Council shall provide a warrant to any such persons which must be produced for inspection on request.
Examination of Complaint
The Preliminary Proceedings Committee is to examine the complaint. Where appropriate, it may inform the complainant that the complaint is more proper to another body or authority, including complaints procedures of the Health Service Executive under the Health Act 2004. The Act provides the procedures to be undertaken by the Committee in putting the complaint to the medical practitioner and in considering whether the complaint is trivial or vexatious in nature, without substance or in bad faith.
The views expressed by the medical practitioner in relation to the complaint must be considered. It provides that where a complaint is withdrawn, the Committee may proceed or decide that no further action should be taken, subject to the Council’s agreement. The Committee will have the power to compel the production of records for the purpose of its investigations.
The Council may apply ex parte to the High Court to suspend the registration of a medical practitioner to protect the public. Such applications are to be heard otherwise than in public, unless the Court decides otherwise. The Court may decide to suspend the registration or give any other direction which the Court may decide.
The Preliminary Proceedings Committee is to notify the Council where it considers no further action is necessary or that the complaint relates to another body or authority or to a matter of professional competence. The Council must confirm or overrule the decision of the Committee and direct that the matter should not be pursued further or that it should be referred to another body or authority, a professional competence scheme or that further action should be taken by the Committee. The medical practitioner and the complainant must be kept informed.
The Council is to develop and publish guidance on the resolution of complaints by mediation or other informal means. This must be undertaken with the consent of the complainant and the medical practitioner, cannot be resolved by the payment of financial compensation and must be kept confidential between the parties to the mediation. Matters discussed may not be used for the purposes of disciplinary, civil or criminal proceedings.
The Preliminary Proceedings Committee may, if it considers that a prima facie case exists, refer a complaint for resolution by mediation or refer the complaint to the Fitness to Practise Committee.
Reference to Fitness to Practise Committee
The chief executive officer may notify the registered medical practitioner of the referral of the complaint to the Fitness to Practise Committee and the nature of the matter to be the subject of the inquiry, including the evidence and the date, time and place of the hearing in sufficient time for preparation.
Witnesses, including the complainant, and the medical practitioner, may request that some or all of the hearing be held in private, if reasonable and sufficient cause can be shown.
A Fitness to Practise Committee hearing shall be heard in public unless the Committee decides, on foot of a request that some or all of the hearing should be heard in private. The Act outlines the conduct of the hearing including oaths, cross-examination, etc.
The powers and protections of the High Court are vested in the Fitness to Practise Committee for the purposes of enforcing witness attendance, examining witnesses on oath and compelling the production of records. Subject to rules and to fair procedures, the Committee may receive evidence orally before the Committee, by affidavit or by live video link, a video recording or a sound recording or other mode of transmission.
Witnesses before the Committee have the immunity and privileges of a witness before the High Court. It is an offence for a person to fail to answer a summons to attend, refuse to take an oath, refuse to produce a record or refuse to answer a question. The maximum penalty on summary conviction is a fine of €5,000.
The medical records of a patient are protected from production for the purposes of an inquiry unless the patient has consented to production or the Committee has directed the medical practitioner to produce the records. The Committee may, during an inquiry, request the medical practitioner to undertake not to repeat the conduct, undertake to be referred to a professional competence scheme, consent to undergo medical treatment or consent to being censured by the Council. Where such an undertaking or consent is not given, the Committee may proceed with the inquiry.
If a complaint is withdrawn while under consideration by the Fitness to Practise Committee, the Committee may, with the agreement of the Council, decide to take no further action or proceed as if the complaint had not been withdrawn. The Fitness to Practise Committee is to submit a report to the Council on its findings following an inquiry.
The Council, on receipt of the report is to decide to dismiss the complaint or impose a sanction as appropriate.
The sanctions to be imposed are:
- a censure in writing
- a censure and a fine not exceeding €5,000
- attachment of conditions to registration
- transfer of registration to another division of the register
- suspension of registration
- cancellation of registration
- prohibition from applying for restoration of registration for a specified period
The amount of a fine, the details of conditions, the period of suspension, etc. are specified. There are matters to be considered in relation to a proposed sanction of cancellation of registration pursuant to a conviction for an indictable offence.
The Council to notify a registered medical practitioner of the sanction it has decided to impose and the rights of the medical practitioner to appeal the decision. The decision must also be notified to the complainant.
High Court Confirmation
The High Court to confirm the decision of the Council to impose a sanction (other than a censure in writing alone), on an application for confirmation by the Council to the Court. There is a right for a medical practitioner to appeal against the decision of the Council to the High Court within 21 days.
The Court may consider any evidence adduced or argument made to the Fitness to Practise Committee or otherwise and may decide to confirm the decision of the Council or cancel it and replace it with another decision to impose no sanction or a different sanction. The Court may make a direction as to costs. The Council may make an application to the Court, on an ex parte basis, for confirmation of its decision where no appeal is made
The Court may consider the evidence of any person of good standing in the medical profession as to what constitutes professional misconduct or poor professional performance in relation to the practice of that profession. Provision for appeal to the Supreme Court on a specified question of law is included.
The Council is to notify the medical practitioner of any conditions attached, the transfer of registration to another Division of the Register, or the suspension of registration as confirmed by the High Court.
The Council is to remove a person’s registration where an appropriate fee has not been paid, unless a complaint is outstanding against that person. There is provision for the restoration of registration removed where the fee is paid within 6 months.
There are circumstances in which a person whose registration has been cancelled may be restored to the register, including the right of the Council to attach conditions to registration it proposes to restore. The Council may remove all or any conditions attached to a medical practitioner’s registration.
The medical practitioner may appeal against the decision of the Council to restore registration or to remove conditions to the High Court. The Court may confirm the Council’s decision, or make another order, including the attachment of conditions, removal of conditions or replacement of conditions to registration. The Court may give directions to the Council and make an order as to costs.
There is provision for the notification to the Minister, the Health Service Executive and other employers regarding the imposition of sanctions on a medical practitioner by the Council. It also provides for the Council to notify a registration body in another jurisdiction of sanctions imposed by the Council on a medical practitioner. The Council may advise the public, where it considers it to be in the public interest, when a sanction imposed takes effect or when a sanction imposed in another jurisdiction takes effect on a medical practitioner.
Reform – Chief Executive Role
The chief executive officer can investigate complaints. It also provides that if the chief executive officer is absent or the position is vacant, another employee can be designated chief executive officer. The chief executive officer can delegate any of his or her functions to a member of staff and revoke a delegation.
Formerly, complaints were made to the Preliminary Proceedings Committee. The 2020 Act provides that complaints are made to the chief executive officer. It also inserts two new grounds of complaint. These new grounds are:
- prohibition on providing one or more kind of health or social care in the State or another jurisdiction; and
- restrictions on providing health or social care in the State or another
The chief executive officer, in relation to a complaint, may request the Garda Síochána to provide information on a medical practitioner’s criminal record. The chief executive officer may also request the Registrar of a Court to provide a certificate of conviction.
The chief executive officer need not proceed with a complaint where he/she is satisfied that the complaint was not made in good faith, or the complaint is frivolous or vexatious. The chief executive officer can tell other parties to the complaint of decisions made. The section also provides that a complaint made before this section commenced will be dealt with under the old provision.
Authorised officers are to be appointed by the chief executive officer to investigate complaints and to assist the chief executive officer and the Preliminary Proceedings Committee in relation to complaints. The chief executive officer will specify the functions of authorised officers.
The functions of persons assisting committees (now authorised officers) were amended in 2020 to include investigating complaints; reporting to the chief executive officer rather than to the Preliminary Proceedings Committee; to request persons to provide the chief executive officer rather than the Preliminary Proceedings Committee with statements; and to include the chief executive officer in relation to providing advice and assistance. Authorised officers will be provided with a warrant which will specify the officer’s functions.
Investigation of complaints post-2020 Act
The chief executive officer will, following receipt of a complaint, have the complaint investigated and will appoint an authorised officer to investigate the complaint. The authorised officer will investigate the complaint and prepare a report for the chief executive officer.
The authorised officer may require the complainant to verify or provide more information regarding a complaint. The chief executive officer may refuse to consider a complaint if the complainant does not verify or provide more information as requested. The medial practitioner who is the subject of the complaint, will be notified of the complaint by the authorised officer who can require the medical practitioner to provide information.
The medical practitioner may provide the authorised officer with any information that needs to be considered by the Preliminary Proceedings Committee or the Fitness to Practise Committee.
If a complaint is withdrawn, the chief executive officer can decide on whether to proceed or that no further action is to be taken. The chief executive officer can compel the production of records and can get medical records of a patient.
Preliminary Proceedings Committee 2020 Act
The Committee will consider the investigation report and any other information from the chief executive officer. If the Committee needs more information, it shall advise the chief executive officer of that and the chief executive officer will seek the information or further investigate and give it to the Committee. If a complaint is withdrawn while being considered by the Committee, the Council’s agreement is no longer required in relation to the Committee’s decision to proceed or not.
Undertakings and Other Reform
There is provision for undertakings and consents at preliminary proceedings committee stage. The Preliminary Proceedings Committee can request the medical practitioner not to repeat the conduct; to be referred to a professional competence scheme; to undergo medical treatment; or to consent to being censured by the Council.
If the medical practitioner agrees, then the investigation into the complaint is considered completed and the complaint is not referred to the Fitness to Practise Committee. If the medical practitioner refuses the request, then the Preliminary Proceedings Committee proceeds as if the request was not made.
Fitness to Practise Committee may order that certain information not be published. The Fitness to Practise Committee may order that some or all of the information regarding a hearing should not be published. Information can be disclosed if it does not identify anyone. A person is guilty of an offence if they contravene this. If a medical practitioner gives an undertaking or consents to a request, the inquiry shall be considered completed.
The 2020 Act removes the requirement for the Council’s agreement to the Committee’s decision to either continue or not with a complaint when a complaint is withdrawn. The 2020 Act expands what is specified in the report to include if the allegation is proved on the grounds other than the grounds on which the complaint was made, and also to clarify that if undertaking/consent is given, to include the measures in that undertaking/consent.
Measures to be taken after Report
If an undertaking/consent was given to the Preliminary Proceedings Committee, the measures taken by the Council are those contained in the report from the Preliminary Proceedings Committee.
If an undertaking/ consent was given to the Fitness to Practise Committee, the measures taken by the Council are those contained in the report from the Fitness to Practise Committee.
If an undertaking/consent was given to the Fitness to Practise Committee, the measures taken by the Council are those contained in the report from the Fitness to Practise Committee.
Appeal & Court
A medical practitioner who had a sanction of advice, admonish or a censure in writing imposed is notified of their right to appeal. Sanctions which are part of an undertaking/consent agreed by the medical practitioner cannot be appealed.
Confirmation by the Court is required for the minor sanctions of advice, admonishment or censure in writing. Sanctions which are part of an undertaking/consent agreed by the medical practitioner do not require confirmation by the Court.
There is a right of appeal of minor sanctions of advice, admonishment or censure in writing. Sanctions which are part of an undertaking/consent agreed by the medical practitioner cannot be appealed.
There is provision for confirmation by the Court of the minor sanctions of advice, admonishment or a censure in writing other than sanctions which are part of an undertaking/consent agreed by the medical practitioner. It also provides for the Court to direct who bears the cost of the confirmation.
The 2020 Act removes the requirement to notify the Minister of sanctions. It also includes that the HSE will be notified of the minor sanctions of advice, admonishment or a censure in writing. In relation to sanctions imposed by other states, the Council shall notify the HSE and the employer if it is in the public interest.
If the Council believes that the person is registered in another country and that country may not be aware of the sanctions imposed, the Council can notify the relevant body in that country. In relation to sanctions imposed by a third country, the Council can, if it is in the public interest, notify another country where the person is registered.
Misc 2020 Act
All sanctions imposed by the Council will be published. In relation to measures imposed by other countries, these are published if it is in the public interest. In relation to publication of the transcript, the requirement to consult with the Fitness to Practise Committee was removed by the 2020 Act.
Admissibility of certain documents relating to proceedings in the State or other jurisdictions
In any proceedings under the 2020 Act, evidence of proceedings in relation to a registrant being prohibited or restricted in providing one or more kind of health or social care or having been convicted in the State or another jurisdiction, can be admissible as evidence of the facts stated in the documents.
A Material matter is defined and includes if a person has been refused registration, has been suspended or removed from registration or has conditions imposed in relation to working in any health or social care profession, or if the person has a conviction in the State or another jurisdiction.