Judge slams ‘defective’ Medical Council procedures

The president of the High Court has expressed serious concern that "defective" Medical Council procedures led to a mental health service employing a doctor without knowing he was precluded since May 2016 from practising medicine.

Under existing procedures, a prospective patient or employer of a doctor who, like Dr Syed Harris Zubair, had undertaken to the council's health committee not to practice medicine, has no way of finding out from the council website or otherwise that such an undertaking applies, Mr Justice Peter Kelly said.

This doctor was also able to obtain employment by producing his certificate of registration obtained by him earlier this year after giving a “patently untrue” answer he was not subject of an undertaking.

Dr Zubair was precluded from practising medicine due to concerns over possible misuse of controlled drugs.

It seems “the right hand of the council does not know what the left hand is doing” because, if there was a proper system in place, that untruth would be flagged as it was in conflict with the undertaking, he said.

He has directed the council to inform the court what measures it plans to take to ensure such a situation will not happen again.

Review

Eileen Barrington SC, for the council, said a review has begun and the health committee procedures will be addressed.

There is a “tension” between the council’s obligations and the health committee’s wish to ensure doctors with substance or other issues self-report and engage, which involved confidentiality issues.

There is no actual evidence as of yet concerning the extent of Dr Zubair’s substance or behavioural issues but he should not have been left in a “twilight” zone for so long since the May 2016 undertaking, she added.

The judge said this was a “black and white” situation as the doctor, due to his undertaking, should not have been practising medicine. While he appreciated confidentiality is an important element of the health committee’s dealings with doctors, a tension arises when there is also an undertaking not to practice medicine, he said.

Given the council’s “primary duty” under the Medical Practitioners Act to protect and inform the public, there should be no “long-fingering” of measures to address these issues and the court would keep the matter under review, he said. In the interim, an order made last month suspending the registration of Dr Zubair will continue, he directed.

Dr Zubair, of Peshawar, Khyber Pakhtunkhwa, Pakistan, who was not in court and not represented, can apply to the court in that regard in a context where he had indicated to the council he was seeking legal representation, the judge said.

Complaint

Dr Zubair (48), qualified in Pakistan, was first registered in Ireland in 2007, and was employed from March last year by Donegal Mental Health Services (DMHS), based at the child and family mental health services, until his contract was ended last July.

A complaint made in late August 2019 alleged Dr Zubair had wrongly used headed notepaper from the DMHS to write prescriptions that month for controlled drugs for a person unknown to the service and with the last known address for Dr Zubair. That matter has also been referred to the gardai.

Previously, in May 2016, Dr Zubair was referred by the Galway and Roscommon mental health service to the health committee over significant concerns about his professional performance while working there for a time in 2015.

It was alleged he was intoxicated or under the influence of substances while on duty in a hospital acute psychiatric unit and the incident was not isolated.

In late May 2016, Dr Zubair gave an undertaking, through his solicitor, to the health committee not to practice medicine here until he was released by the committee from that undertaking.

At a review session with the committee in June 2016, a medicine consultant noted he did not appear to have “a serious health problem”. Another doctor reported in July 2016 there may be issues around substances of abuse but said Dr Zubair had failed to attend an addiction specialist.

Dr Zubair told the committee in August 2017 he was in Pakistan and would not be starting any clinical work in Ireland before appearing before the committee. In late October he told the committee he was “stuck in Pakistan” and had not received any promising offer of a job in Ireland.

Prior to that, the Council on September 4th received the complaint alleging Dr Zubair had written prescriptions on headed notepaper from the DMHS Department of Psychiatry when he was no longer employed there.