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Cahill v. Dental Council [2001] IEHC 97 (15th June, 2001)
THE
HIGH COURT
2000
No. 579 SP
IN
THE MATTER OF DENTISTS ACT 1985
AND
IN THE MATTER OF SECTION 41(3) THEREOF
AND
IN THE MATTER OF AN APPLICATION OF A REGISTERED DENTIST
BETWEEN
RONAN
CAHILL
APPLICANT
AND
THE
DENTAL COUNCIL
RESPONDENT
JUDGMENT
of Mr. Justice McCracken delivered the 15th day of June, 2001
.
INTRODUCTION
The
Dental Council was established under the
Dentists Act 1985 to oversee the
registration and control of persons engaged in the practice of dentistry, and
included in its remit are certain disciplinary procedures. As part of these
procedures
the Act set up a Fitness to Practice Committee. The statutory
provisions relative to these proceedings are:-
“38(1):
The Council or any person may apply to the Fitness to Practice Committee for an
enquiry in to the fitness of a registered dentist to practice dentistry on the
grounds of:-
(a)
his
alleged professional misconduct, or
(b)
his
alleged unfitness to engage in such practice by reason of physical or mental
disability.
And
the application shall, subject to the provisions of this Act, be considered by
the committee established by the Council under Section 13(2)(b) of this Act (in
this Act referred to as the “Fitness to Practice Committee”).
(3):
Where an application for an inquiry is made under this section and the Fitness
to Practice Committee, after consideration of the application, is either of
opinion that there is a prima facie case for holding the enquiry or.......
The
following shall have effect:-
(a)
The
Fitness to Practice Committee shall proceed to hold the inquiry.
(b)
The
registrar, or any other person with the leave of the Fitness to Practice
Committee shall present to that committee the evidence of alleged professional
misconduct .....
(c)
On
completion of the inquiry, the Fitness to Practice Committee shall embody its
findings in a report to the Council specifying therein the nature of the
application and the evidence laid before it and any other matters in relation
to the registered dentist which it may think fit to report including its opinion,
having
regard to the contents of the report, as to:-
(i)
The alleged professional misconduct of the registered dentist.
39(1):
Where the registered dentist:-
(a)
has
been found by the Fitness to Practice Committee, on the basis of an inquiry and
report under Section 38 of the this Act, to be guilty of professional
misconduct.... the Council may decide that the name of such person should be
erased from the register or from the Register of Dental Specialists, as the
case may be, or that, during a period of specific duration, registration of his
name and the register concerned should not have effect.
40(1):
The Counsel, following an inquiry and report by the Fitness to Practice
Committee under Section 38 of this Act, may decide to attach such conditions as
it thinks fit to the retention in any register maintained under this Act of a
person whose name is entered in such register.
(2):
On
making a decision under this Section, the Council shall forthwith send by
prepaid post to the person to whom the decision relates, at his address as
stated in the register, a notice in writing stating the decision, the date
thereof and the reasons therefor.
(3):
A
person to whom a decision under this Section relates may, within the period of
21 days beginning on the date of the decision, apply to the High Court for
cancellation of the decision and if he so applies:-
(a)
The
High Court, on the hearing of the application, may
(i)
cancel the decision, or
(ii)
declare that it was proper to make a decision under this Section in relation to
such person and (as the Court may think proper) direct the Council to attach
such conditions as the Court thinks proper to the retention of the name of such
person in any register maintained under this Act, or
(iii)
give such other directions to the Council as the Court thinks proper.
(7):
The
Council may at any time remove in whole or in part the conditions attached to
the retention of the name of any person in any register maintained under this
Act.
41(1):
The Council, following an inquiry and report by the Fitness to Practice
Committee under Section 38 of this Act into the conduct of a person whose name
is entered in any register maintained under this Act may, on receipt of the
report of that committee, if it so thinks fit, advise, admonish or censure such
person in relation to his professional conduct.”
1. The
procedures to be followed on an appeal to the High Court have been clearly set
out by Finlay P., as he then was, in
Re: M., a Doctor
(1984) I.R. 479 at page 483 where he said:-
“For
these reasons I have come to the following conclusions. Upon the making by a
Practitioner of an application to the High Court under either Section 46 or 47,
to cancel a decision of the Council, the onus of proving the alleged misconduct
of the Practitioner rests on the Council - as does the onus of establishing
that the decision made by the Council with regard to the appropriate penalty is
correct. Notwithstanding the use of the expression “cancel the
decision” in Sections 46 and 47, I am satisfied that the procedure does
not constitute a mere appeal from the combined decisions of the committee and
of the Council but is an entire trial of the issues involved.”
2. It
is accepted by Mr. Feeney S.C. on behalf of the Respondent that the onus does
rest on it, and further that standard of proof is proof beyond reasonable
doubt. At the commencement of this hearing an application was made on behalf
of the Applicant to amend his Notice of Motion to include a claim that the
report of the Fitness to Practice Committee to the Respondent in the present
case is so deficient in material particulars that it could not form a proper
basis for the Respondent’s decision. I allowed the amendment on certain
terms, but it seems quite clear to me that, as this is a complete rehearing, I
am not concerned with the findings of the Fitness to Practice Committee or the
factual basis upon which penalties were imposed on the Applicant in the present
case. I have to determine these matters on the evidence before me, and not on
the evidence before the Fitness to Practice Committee.
BACKGROUND
TO THE CASE
3. The
complaints against the Applicant arose from his treatment of an eight year old
patient (hereinafter called “Alec”). Alec had previously been
treated in a local Health Board Clinic for dental problems and had become
extremely upset and unco-operative, and refuse to return to the clinic for
further treatment. He was in need of two fillings and probably the removal of
a tooth, and was going to need future orthodontic treatment. His mother was
advised by the Health Board Clinic to take him to a private practitioner who
might have better facilities for dealing with a difficult child.
4. The
Applicant’s practice is a long established family practice in which the
principal practitioners are the Applicant, his father and his uncle, all of
whom are also qualified medical doctors. Alec’s father had many years
earlier as a child attended the practice and at his suggestion an appointment
was made for the Applicant to see Alec on 22nd October, 1996 for an initial
assessment. He duly attended at the Applicant’s surgery with both his
parents. Slightly differing accounts of what took place are given by
Alec’s parents and by the Applicant, but certain facts are either agreed
or have in my opinion been established beyond reasonable doubt in relation to
that attendance. These are:-
1. Alec’s
parents were very anxious that any procedures to be carried out should not be
frightening or traumatic to him, particularly in view of the future orthodental
treatment which he would need.
2. To
this end, they wanted Alec to be, in their words, “
asleep”.
3. They
did not understand, nor was it explained to them by the Applicant, the
distinction between sedation and general anaesthesia. I am satisfied, however,
that they believed that the treatment that Alec was going to get would take
place at a time when he was unconscious.
4. Alec’s
mother wished to be present during the procedure or at least until Alec was
unconscious.
5. The
Applicant examined Alec briefly and may have taken wing byte X rays, although
this is disputed by Alec’s parents. In view of the nature of the onus of
proof, I think I must assume in the Applicant’s favour that he did take X
rays, and that they have since become mislaid.
6. The
Applicant took a medical history of Alec, including the fact that he suffered
from asthma and eczema.
7. There
was no discussion or mention of intravenous sedation or indeed of how the
Applicant proposed to put Alec asleep as requested by his parents.
8. Alec’s
parents were given a printed document headed “Guidelines for Patients
requiring sedation”.
5. On
4th November, 1996 Alec and his mother duly attended the surgery to have the
fillings carried out. Alec’s mother went in to the surgery with him,
Alec got in to the chair but became distressed. The Applicant asked
Alec’s mother not to speak, and subsequently asked her to leave and wait
in the downstairs waiting room. She left the room, but in fact waited outside
the surgery. There were two dental nurses in attendance and Alec was
distressed and crying. The Applicant, with the aid of the nurses, inserted the
intravenous cannula in to Alec’s arm and commenced to inject a sedative.
Alec was still crying loudly, and his mother came back into the surgery and
claims that she saw the Applicant with his hand over Alec’s mouth. The
Applicant states that this was to prevent Alec from hyperventilating, and he
also says that Alec’s mother came over to Alec and actually slapped him
in the face and told him to stop crying. Fortunately, I do not have to make
any determination as to the rights and wrongs of the behaviour of both the
Applicant and Alec’s mother as these are not issues before me, and I
think it should be made clear that, while there were complaints before the
Fitness to Practice Committee, the Applicant was found not guilty of any
physical maltreatment of Alec. The sedative did not appear to be having any
great effect, Alec was still very disturbed and his mother was distressed, and
accordingly the entire procedure was aborted.
6. A
few days later, by a letter dated 7th November, 1996, Alec’s mother made
a complaint to the Respondent. This complaint was primarily concerned with the
Applicant having his hand over Alec’s mouth. Correspondence ensued
between the Respondent and the Applicant in the course of which the Applicant
stated that Alec’s parents had wanted the treatment performed under
general anaesthetic. The Respondent then sought details of what drugs were
administered to Alec, and the Applicant’s initial response was that Alec
received 10 mg diazemuls and 600 micrograms of atropine.
7. The
Applicant was asked to expand further on the treatment and by letter dated 19th
September, 1997 to the Respondent he stated,
inter
alia
:-
“2.
Dr. A. Cahill (another member of the practice) was a member of the team
available to treat Alec if it was felt that sedation alone would not be
sufficient and that Alec should be given an anaesthetic. Both myself and Dr.
A. Cahill were in a position to act either as anaesthetist or dental operator
to suit Alec’s needs. My colleague was therefore available and waiting
to be called in the adjacent room. My position was that if I could minimise
the evasive treatment of Alec by sedating him to a point where he could be
treated successfully I would have carried out the treatment under sedation, but
if it was clear that clinical control could not be achieved without general
anaesthesia then the diazemuls used for sedation would have assisted the
induction of the anaesthetic, at which Dr. Cahill would have been present to
proceed with the clinical work.
(3)
Sedation/anaesthesia was to be secured by way of an indwelling intravenous
cannula using an appropriate doze of diazemuls (approximately 10-20 mg in this
case) given to determine whether sedation had been adequately secured. The
same agent could also be used for induction for anaesthesia (in accordance with
Dental Council Guidelines Anexate was available to reverse the procedure if
required).
(5)
As noted in 2. above the aim was to secure a safe state for the patient,
either sedated or under general anaesthesia as appropriate. Equipment in order
to ensure the safe provision of anaesthetic/sedation and the dealings of
appropriate emergencies in accordance with the Council’s guidelines was
available.”
8. Following
further queries, the Applicant stated,
inter
alia
,
by letter dated 23rd May, 1998-
“One
10 mg ampoule of diazemuls was partially administered to the patient who
received an estimated 5-8 mg. This was in keeping with the manufacturers data
sheet instructions of 0.1 - 0.2 mg/kg of body weight for a child of 30-40 kgs.
At this dosage the level of sedation achieved was inadequate and so in
accordance with the manufacturers data sheet, (dosage and administration,
paragraph 1, 2) administration of a further increment of the drug would have
been slowly titrated against the patients response to secure an appropriate
level of sedation. In some cases appropriate levels of sedation are achieved
using less than the recommended dose and in some cases it may be necessary to
give more.”
PROCEEDINGS
BEFORE THE FITNESS TO PRACTICE COMMITTEE
9. Following
this correspondence and the complaints by Alec’s mother, an inquiry was
held before the Fitness to Practice Committee of the Respondent. Certain of
the allegations against the Applicant were not proceeded with, and he was found
not guilty of other allegations. However, the committee found him guilty of
the following allegations:-
“That
you, being a registered dentist, failed to use and/or apply appropriate
procedures in and about the management and treatment of your patient, Alec, on
or about the 22nd day of October, 1996 and the 4th day of November 1996 in that
you:-
(c)
Proceeded
to carry out an intravenous sedation/general anaesthetic procedure without
ensuring that proper professional monitoring standards were in place and/or
being applied.
(d)
Failed
to adequately explain to the parents of the patient the nature of the procedure
you intended carrying out.
(f)
Failed
to carry out appropriate pre-sedation/anaesthetic assessment of the patient.
(g)
Failed
to take the appropriate steps to ensure that no more than the recommended
dosages of medication were used.
(h)
Administered,
or intended to administer, an excessive dosage of diazemuls without sufficient
cause.
(j)
Failed
to have due regard to the Dental Council’s guidelines concerning
intravenous sedation of children under the age of ten.
(k)
Carried
out, or intended to carry out, a general anaesthetic procedure whilst at the
same time being the practitioner intending to carry out the dental
procedure.”
10. As
a result of these findings the Respondent decided to censure the Applicant in
relation to his professional conduct pursuant to Section 41 of the Dentist Act
1985 and further imposed certain conditions on the Applicant pursued to Section
40 of that Act. These conditions were:-
“(1)
That
you do not engage in a practice of dentistry involving the use of general
anaesthesia or sedation.
(2) The
condition outlined at (1) above shall not operate so as to preclude you from
making arrangements with one or more consultant anaesthetists to be approved in
advance by the Council to attend at your practice(s) for the purpose of
administering sedation to patients of such practice(s) provided the consulting
anaesthetists so attending remain throughout the treatment of the sedated
patients until their discharge
.
(3) That
you should prominently display a notice in your surgery and your waiting room
(the form should be approved by the Dental Council) advising patients of the
foregoing conditions (1) and (2).
(4) You
should successfully complete an educational course in paediatric dentistry
approved by the Dental Council.
(5) That
you shall admit representatives of the Council to any premises where you
practice dentistry, but excluding the residential portion of such premises, at
all reasonable times for the purpose of ensuring compliance with the foregoing
conditions (1), (2) and (3).”
11. It
is from these findings that the Applicant has appealed to the High Court.
EXPERT
EVIDENCE
12. A
number of medical and dental experts gave evidence before me. However, before
turning to consider their evidence, there are two documents which appear to me
to be essential to the case. The first of these is the data sheet issued by
the manufacturers of diazemuls and as I understand it included in each
container of diazemuls ampoules. It identifies one of the uses of diazemuls as
being for sedation prior to procedures such as dentistry. In relation to
dosage and administration it states:-
“Diazemuls
may be administrated by slow intravenous injection (1 ml) or by continuous
infusion. Diazemuls should be drawn up in to the syringe immediately prior to
administration.
Sedation:
0.1-0.2 mg diazepan/kg body weight by I.V. injection. The normal adult dose is
10-20 mg, but dosage should be titrated to the patients response”.
13. The
second document is one which was issued by the Respondent a short time before
these events took place. It is called “Guidelines relating to the
Administration of General Anaesthesia and Sedation and on Resuscitation”.
In these guidelines, general anaesthesia is defined as:-
“A
controlled state of unconsciousness accompanied by a partial or complete loss
of protective reflexes, which may include inability to maintain an airway
independently and to response purposefully to physical stimulation or verbal
control”.
14. Sedation
is defined as:-
“Simple
dental sedation is a carefully controlled technique in which a single
intravenous drug or a combination of oxygen and nitro-oxide is used to
reinforce hypnotic suggestion and reassurance in a way which allows dental
treatment to be performed with minimal psychological stress. Verbal
communication with the patient should be maintained at all times throughout the
procedure and it is essential that the protective pharyngeal and laryngeal
reflexes remain intact at all times, and that the patient breaths spontaneously
without respiratory obstruction. The technique must carry a margin of safety
wide enough to render unintended loss of consciousness unlikely.
Any
technique of sedation other than as defined above is regarded as coming within
the meaning of general anaesthesia.”
15. There
is then a section dealing with intravenous sedation, which provides:-
“The
definition of dental sedation requires intravenous sedation to be limited to
the use of one drug with a single titrated dose and an end point remote from
anaesthesia. The use of more than one drug must not be considered simple
sedation and would require the same precautions as for the administration of a
general anaesthetic.”
16. Most
importantly, there is a provision that:-
“Intravenous
sedation is not recommended for children particularly under the age of ten
years”.
17. The
section on intravenous sedation then ends with the warning:-
“Any
dentist who carries out treatment under intravenous sedation without fulfilling
the above conditions will almost certainly be considered to have acted in the
manner which constitutes professional misconduct.”
18. It
should also be added that a report commissioned in the United Kingdom a few
years earlier known as the Poswillo Report states:-
“We
do not recommend intravenous sedation for children, particularly those under
the age of ten years. The use in all children should be approached with
caution as the effects may be unpredictable.”
19. The
expert evidence before me contained differences of emphasis, but little real
difference of content. In particular, I am quite satisfied from the expert
evidence that:-
(1) Intravenous
sedation should only be used very sparingly on children, when there are
exceptional circumstances justifying its use.
(2) The
quantity of diazemul necessary to induce sedation varies from patient to patient.
(3) The
dosage recommended in the data sheet would tend to allow for a considerable
safety margin. However, the method of calculating the dosage by reference to
the weight of the patient is the most effective guideline, and in all cases the
patient should be weighted before determining the dosage.
(4) Diazemul
should not be used to induce anaesthesia other than in very exceptional
circumstances.
20. Finally,
I have heard the evidence of the Applicant himself. It must be said that his
evidence was somewhat at variance with the matters set out by him in
correspondence with the Respondent, particularly with regard to his intentions,
and also with regard to the amount of drug which was in fact administered. He
accepts that he probably did not discuss the various alternatives sufficiently
with Alec’s parents, and also acknowledges that he did not weight Alec,
but rather relied upon his general experience in calculating the dosage.
Unfortunately, his calculation of the weight of Alec in his correspondence with
the Respondent was clearly wrong, as I am quite satisfied that Alec’s
weight was in fact in the region of 25 kg and not the 30-40 kg calculated by
the Applicant.
21. The
Applicant also gave evidence that general anaesthesia, as he put it “in
the hospital sense” was never carried out in his practice although he did
imply that at times what some experts have called unconscious sedation was
carried out, namely sedation to the point where the patient was asleep, but
would react to stimuli.
22. Generally,
while I found the Applicant to be truthful in his evidence, I think it also
contained a considerable amount of what I might call justification by hind
sight of his methods of treatment. Although he claimed, and I think rightly,
that the practice specialised in sedation techniques, the only form of sedation
used by the Applicant was intravenous sedation. He clearly believes this to be
the best method available, and conceded that he used it on 20 - 40 children a
year.
CONCLUSIONS
23. To
deal with each of the charges before me individually:-
“(c)
Proceeded to carry out an intravenous sedation/general anaesthetic procedure
without ensuring that proper professional monitoring standards were in place
and/or been applied.”
24. From
the evidence of the Applicant and of other people employed in his practice I am
not at all satisfied that he ever intended to carry out general anaesthetic
procedure. I think he, possibly unwittingly, used that phrase in his
correspondence with the Respondent, but I do not think that it was ever
intended to have the meaning which has been attached to it by the Respondent.
That being so, I am satisfied that there were proper professional standards in
place in relation to intravenous sedation and that he is not guilty of this
charge.
“(d)
Fail
to adequately explain to the parents of the patient the nature of the procedure
you intended carrying out.
”
25. I
am satisfied beyond all doubt that the Applicant did not explain to
Alec’s parents either the alternatives available nor the sedation
procedure which he intended to carry out. Furthermore, he did not, as he ought
to have, warn the parents that it was not considered good practice to give
intravenous sedation to a child of eight years of age. He is clearly guilty
of this accusation.
“(f)
Fail to carry out appropriate pre-sedation/anaesthetic assessment of the
patient.”
26. As
I have said, I do not think that anaesthesia was ever intended, but I am
satisfied beyond all reasonable doubt that part of the appropriate assessment
of Alec would have been to weight him, and that the Applicant failed to do this
and is accordingly guilty of this charge.
“(g)
Fail to take the appropriate steps to ensure that no more of the recommended
dosages of medication were used.
”
27. Again,
on the evidence before me, the failure to weight Alec was a failure to take an
appropriate step and the Applicant is guilty of this charge. However, I would
consider that it is in effect the same charge as the previous one.
“(h)
Administered, or intended to administer, an excessive dosage of diazemuls
without sufficient cause.”
28. I
accept the Applicant’s evidence that he intended to administer only a
sufficient quantity of diazemuls to sedate Alec, and I accept that the data
sheet guidelines are probably very conservative. On balance, I am not
satisfied beyond reasonable doubt that there was any intention to administer an
excessive dosage, and certainly I am not satisfied that an excessive dosage was
in fact administered. Accordingly, I would find him not guilty of this charge.
“(j)
Fail to have due regard to the Dental Council’s guidelines concerning
intravenous sedation of children under the age of ten.”
29. I
have no doubt at all that the Applicant paid little or no attention to the
guidelines in relation to the administration of intravenous sedatives to
children, particularly under the age of ten, and I think he is guilty of this
charge.
“(k)
Carried out, or intended to carry out, a general anaesthetic procedure whilst
at the same time being the practitioner intending to carry out the dental
procedure.”
30. As
I have already said, I am not satisfied that the Applicant ever intended to
carry out a general anaesthetic procedure, and he certainly never did carry out
such a procedure, and accordingly he is not guilty of this charge.
DO
THESE CHARGES CONSTITUTE PROFESSIONAL MISCONDUCT?
31. Professional
misconduct is not defined in the Act, although its meaning has been considered
in a number of cases. In particular, the authorities were reviewed in
considerable detail by Keane J. in
O’Laoire
-v- The Medical Counsel
(unreported
27th January 1995) from which authorities he deduced certain principles set out
at page 106 as follows:-
“(1) Conduct
which is “infamous” or “disgraceful” in a professional
respect is “professional misconduct” within the meaning of Section
46(1) of the Act.
(2) Conduct
which would not be “infamous” or “disgraceful” in any
other person, if done by a medical practitioner in relation to his profession,
that is, with regard either to his patients or to his colleagues, may be
considered as “infamous” or “disgraceful” conduct in a
professional respect.
(3) “Infamous”
or “disgraceful” conduct is conduct involving some degree of moral
turpitude, fraud or dishonesty.
(4) The
fact that a person wrongly but honestly forms a particular opinion cannot of
itself amount to infamous or disgraceful conduct in a professional sense.
(5) Conduct
which could not properly be characterised as “infamous” or
“disgraceful” and which does not involve any degree of moral
turpitude, fraud or dishonesty may still constitute “professional
misconduct” if it is conduct connected with his profession in which the
medical practitioner concerned has seriously fallen short, by omission or
commission, of the standards of conduct expected among medical
practitioners.”
32. In
the present case, there is no question of the conduct of the Applicant being
either
“infamous”
or
“disgraceful”.
However, I feel I must come to the conclusion that some of the
Applicant’s conduct in his professional practice as a dentist has
seriously fallen short of the standards expected among dental practitioners.
In my view this is so particularly in relation to his total failure to
communicate properly with Alec’s parents and what appears to me to be his
total disregard of the Respondent’s guidelines in relation to the use of
intravenous sedation on children. I am quite satisfied that the Applicant did
consistently use intravenous sedation on children where there were no
exceptional circumstances, and in particular no exceptional circumstances have
been offered in the case of the treatment of Alec. This, coupled with his
failure to weigh Alec and therefore his failure to use the accepted guideline
as to dosage did in my view constitute professional misconduct, particularly
having regard to all the warnings about the use of intravenous sedation on
children.
PENALTIES
33. Insofar
as the failure to communicate with Alec’s parents is concerned, I am
quite satisfied that a caution is a sufficient penalty, and I am satisfied that
the Applicant would not repeat that error. However, in relation to the
failure to have regard to the guidelines and the failure to use proper means to
calculate the dosage, I think that the imposition of some form of conditions on
the Applicants practice is warranted. I do feel, however, that the conditions
imposed by the Respondent are unnecessarily restrictive and I would direct the
Respondent to impose the following conditions:-
(1) That
you do not engage in the practice of dentistry involving the use of general
anaesthesia or sedation on any patient under the age of sixteen.
(2)
The condition outlined in (1) above shall not operate so as to preclude you
from making arrangements with one or more consultant anaesthetists to attend at
your practice for the purpose of administrating sedation to patients of such
practice under the age of sixteen provided that the consulting anaesthetist so
attending remains throughout the treatment of such sedated patients until their
discharge.
(3) That
you should successfully complete an educational course in paediatric dentistry,
namely the module in paediatric dentistry which is part of the diploma in
clinical dentistry offered as a post-graduate course in the Dental Hospital, or
a similar course to be approved of by the Respondent, and that on successful
completion of such course, the Respondent should reconsider the restriction
imposed at condition (1) above.
© 2001 Irish High Court
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