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Not keeping Council: GP speaks out on FTP case

Dublin GP Dr Marcus De Brun sits down with Catherine Reilly to outline why he refused to submit to a Medical Council performance assessment, a matter that saw him subjected to a recent Fitness to Practise inquiry where no adverse findings were made

Dr Marcus De Brun is animated and indignant in recollecting his recent Medical Council Fitness to Practise (FTP) inquiry, which arose from his refusal to submit to a performance assessment. No adverse findings were made against Dr De Brun following the hearing in June, and while vigorous in defence of his decision, the GP admits he is “only just recovering from the whole process”.

Speaking to the Medical Independent (MI) at his surgery in Rush, north Co Dublin, Dr De Brun says “any doctor who is under the shadow of a Medical Council investigation is immediately tainted”.

“People think, ‘oh, it’s great now we have a lay-dominated Medical Council, they are going after the doctors and they are hauling out the bad guys, getting all the pervy, weird ones, getting them all out there in court and stringing them up alive — brilliant’. But it is not [doing that].”

””

Dr Marcus De Brun, GP, North Co Dublin

Complaint

Dr De Brun’s case was unusual. Its beginnings can be traced to 2014, when a patient made a complaint about him to the Medical Council. The regulator examined the complaint and after a lengthy investigation decided to close the matter without referral to its FTP Committee. This was only the end of the beginning, however, as the Council informed Dr De Brun that he was to be subject to a ‘performance assessment’ as mandated under the Medical Practitioners Act 2007. The Council informed him this was because areas for development had been identified, and that the process should not be seen as punitive or as substantiating the complaint.

Had Dr De Brun ever heard of this process? “No, I had never heard of it before; I didn’t know what it was,” responds the GP. “Initially I thought, ‘right, it is the last hurdle, do this bloody performance assessment and the thing is over’.”

Dr De Brun says he took the initial complaint very seriously and personally. He and his family even departed for the US in 2015 when the “initial complaint had just kind of drawn to a close and the performance assessment stuff was just starting off”. Dr De Brun says he has qualifications in microbiology and English and, with the pressures of Irish general practice and the nature of the regulatory climate, he was prepared to walk away. He says he had tried and failed to sell his practice.

Dr De Brun says he was “completely floored” when the Council sent him literature on what was involved in a performance assessment. In his view, the process appeared to be “way more invasive” than the complaint investigation phase, which was at this point closed. Dr De Brun was especially perturbed by the posited mental health assessment, as he saw no basis for it. The Council wanted to send representatives to sit in “on an unspecified number of consultations”, have surveys distributed to patients, obtain his mobile phone number and inspect his premises, claims Dr De Brun.

“I said ‘absolutely not’… I said to them, ‘who is the Medical Council to inspect physical premises — that is the job of HIQA or the HSE’. I have a medical card list here and there was another doctor here at the time, she had a medical card list and every time you get granted a medical card list, the HSE sends an inspector out and inspects your premises; when I got planning permission to build this place, it was planning permission as a medical centre, so the county council came out [and inspected]… This is simply that the Medical Council comes out and has a blank card to inspect your premises and tell you what they want afterwards; there are no criteria in the booklet… ”

According to Dr De Brun, the Medical Council rowed back on some of its stipulations, including the mental health assessment. He claims the Council referred to its assessment programme as a “developing process”. He says there was also reference in the literature to a fee (the relevant statutory instrument says practitioners shall discharge such fees and expenses as may be determined by the Council from time-to-time). Dr De Brun said no figure was referenced.

There was correspondence back and forth. Dr De Brun says he informed the Council that “‘if this process itself is not fit for purpose, in that you are shelving all of these things, I don’t feel confident engaging in it whatsoever, because clearly you have modified this process to no end, I am very uncomfortable with this, I am not going to engage with this’. And they wrote back and said ‘if you don’t engage with this, you will be going to an FTP hearing’… I said ‘well, there is nothing I can do, I am not going to submit to this process and I don’t think anybody should submit to that process’.”

‘Scary’

However, submitting oneself to an avoidable FTP inquiry is a huge decision. It was “scary”, admits Dr De Brun, but he also felt it probably wouldn’t go that far.

“I thought somewhere along the line, someone is going to wade in here and say, ‘hold on a second, this is not fair, this is wrong’… They wrote to me again and asked ‘are you going to participate?’ I said ‘no’. They wrote to me again and they said ‘you have been scheduled for a full FTP hearing’ and I was very stressed, very depressed, very upset, very hurt, very worried about this. I didn’t tell my wife half of the things that were going on because if I told her, her line on it would be ‘do the scheme… and let’s move on with our lives’ but I was so indignant about the whole thing I said, ‘no, I am not going to, I am going to the bloody FTP hearing’, and I was that upset about it, I said ‘I will go to the FTP hearing and if they say ‘you can’t practise medicine anymore’, let them take the bloody keys because I have had enough; this is just insane what is going on.”

But reality began to bite: Dr De Brun was now dealing with the Council’s legal representatives in correspondence and felt a somewhat understandable distance from medical colleagues. He feared that colleagues now felt the original complaint from the patient — which had been closed — may be the underlying basis of the FTP inquiry.

“You can speak to colleagues about something like this but once you are tainted with an investigative process going on – even though I can say to you or anyone else, ‘look, that complaint was closed’ — where there is smoke there is fire, ‘you must have done something’, ‘why are they going after you like this?’, ‘they don’t usually do that to everybody’, ‘I haven’t heard this type of story before’… Any doctor who is under the shadow of a Medical Council investigation is immediately tainted. Many of my colleagues have been my friends and I don’t blame them, but when I had to go to an FTP hearing, one person showed up; a colleague from Tipperary who I don’t even know that well. So it is a very lonely road for any doctor to go down, because your colleagues are fearful of standing beside you and I can see why, because it is never over until it is over, until it has come out, investigated fully, on the table. Now I have the support of everybody, everybody is saying ‘oh, you did the right thing standing up to them’. But it is a lonely bloody road before you get to that point, because people are understandably cautious with this sort of stuff because it is so sensitive. Any doctor going through a process like this would have my deepest sympathies, because you are very much alone.”

The public may believe that there are plenty of support mechanisms for doctors going through FTP cases, but Dr De Brun says this is not so. “There is no doctor organisation that rings you or no group in the Medical Council that rings and says, ‘how are you getting on with this, are you okay?’”

Guilty — but not guilty

Dr De Brun says he is guilty of refusing to participate in the requested performance assessment. He admitted this to the FTP hearing, which made no findings against him for this disobedience. The Council has been seeking a number of reforms to the Medical Practitioners Act, including to resolve the issue where all complaints must be investigated by the Preliminary Proceedings Committee without early recourse to mediation if appropriate, for example. By press time, it had not confirmed if performance assessment was included in the areas where it has advocated reform.

According to the Council’s annual report for 2016, it received 411 complaints during the year and four doctors were referred for a performance assessment of their practice. The report refers to a risk of damage to the reputation of the Council owing to the “failure to efficiently utilise performance assessment”; it says it will continue to review and refine the use of performance assessment “to ensure effective, efficient and proportionate use”.

Dr De Brun is strongly of the view that the Council’s “predatorial” relationship with doctors is contributing significantly to the length of hospital waiting lists, as doctors increasingly practise defensive medicine. He says many GPs at times inappropriately refer for MRIs, prescribe antibiotics and refrain from candidness because they fear patients will complain about them to the Council.

On his desk, he pulls out a recent letter from Beaumont Hospital, Dublin, which states that the dermatology appointment for a referred patient will take place “within the next 28-to-29 months”, which Dr Brun says highlights that the hospital system is under increasing pressure, while GPs struggle to manage as much as they can in the community.

“… The Medical Council wants to have a predatorial relationship with us, fine, we will react accordingly, and that is what is happening, that is the kind of sub-script. The sad thing is, you are not seeing this side of the reality coming out in the media; all you are seeing is the story, the sub-text is rarely there and that is a real question about life in Ireland — why is it that we operate on the basis of the sound-bite and the superficial, and we never, ever want to drill down?”

Dr De Brun, who has previously run for election to the Council, says regulation has its role and he favours the system in New Zealand, where a body separate to the Medical Council of New Zealand investigates complaints.

According to Dr De Brun, a number of doctors in Ireland are involved in a new campaign group called Doctors 4 Regulatory Reform. He will speak alongside colleagues on 6 October in Dublin.

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