The Pro-Life Campaign confirmed last week that it had sent a complaint to the Medical Council about the conduct of doctors in the Rotunda Hospital engaged in its infertility programme, arising from its recent decision to freeze embryos.
Last May, the Master of the Rotunda, Dr Peter McKenna, told The Irish Times that its contract with couples seeking this treatment involved implanting all the frozen embryos, but there were circumstances in which this might prove impossible, and in these cases they would be destroyed after some time.
The complaint is likely to take months, if not years, to work its way through the Medical Council's disciplinary procedures, and, if the council decides no action should be taken the public might never know what emerges during the proceedings.
The medical profession is one of a number whose members' conduct is regulated by the profession itself, and this is enshrined in law. The Medical Council was set up under the 1978 Medical Practitioners Act, which specifies that it should maintain a register of medical practitioners, supervise their training and enquire into the fitness to practise of registered practitioners for alleged professional misconduct or arising from physical or mental disability.
An Bord Altranais was set up to perform a similar function with regard to the nursing profession. In conducting inquiries both bodies have the powers of the High Court.
As part of their statutory duties both operate Fitness to Practise Committees to investigate complaints against registered doctors and nurses. If they find the complaint justified they can recommend that the practitioner be struck off the register. This decision goes to the High Court for ratification, and the practitioner has the right to appeal against the decision in the High Court. The High Court hearings are in public.
However, if the committees find that the complaint is not justified its decision does not go to the High Court, and never receives a public airing. There is, therefore, no public scrutiny of the disciplinary proceedings.
There is nothing in the legislation to say that the Fitness to Practise hearings must be in private, but the practice has been that they normally are. This has been tested in three recent court cases, two concerning the Medical Council and one An Bord Altranais, which have held that the bodies in question have the right to decide whether hearings should be in private or in public.
Dr Patricia Casey is chairman of the Medical Council's Fitness to Practise Committee. "Our legal advice always was that the hearings had to be held in private," she said.
The case of Dr Moira Woods, who has been accused of falsely diagnosing child sex abuse, was the first in which the complainant sought a public hearing, she said, and the council decided to "push the boat out" and do so. The Eastern Health Board refused to make confidential documents about the children available, and the High Court ruled that it should produce them, but they should be discussed in private.
In the other case the accused doctor, Dr James Barry, against whom women patients had made a number of allegations, wanted the case held in public. This was opposed by the complainants, who did not wish to give evidence in public. The Supreme Court found that the council had discretion in the matter.
This judgment was cited by the High Court in the case of a midwife, Ms Ann O Ceallaigh, who sought to have a Fitness to Practise hearing by An Bord Altranais heard in public, and, failing that, to have expert witnesses attend it. The board had discretion to decide not to comply with her wishes, the court found.
"Our policy now is that we offer every party, complainant and practitioner, the right to have the inquiry in private or in public," said Dr Casey. "We take submissions on it, and decide. One of our considerations would be whether or not witnesses would be put off giving evidence in public.
"In any case brought to us the complainant is represented by the registrar's legal team," she explained. "The complaint has to be in writing and has to be signed. We write to the practitioner with a copy of the complaint, seeking his or her comments, which are sent to the complainant. That often resolves the matter."
If the matter goes to a full inquiry, and the committee finds that professional misconduct has occurred, it can decide that the practitioner's name can be erased from the professional register either permanently or for a period. The practitioner has three weeks in which to appeal against this decision to the High Court. In Britain these disciplinary hearings are normally in public. This is also the case in Austria, the Netherlands, Germany, Australia and the US.
Supporting Ms O Ceallaigh's High Court attempt to have her Fitness to Practise hearing in public, Ms Mary Cronk, a member of the professional conduct committee of the UK Central Council for Nursing Midwifery, said that its policy of public hearings protected the public and justified public trust. "I know of no adverse consequences of public hearings," she said.
Disciplinary hearings against doctors are also heard in public in Britain.
Mr Eugene Donoghue, the chief executive officer of An Bord Altranais, said that the board could decide to hold a Fitness to Practise hearing in public, but had not yet done so. "It is very seldom requested," he said.
"For the most part the practice is to hold them in camera. Maybe it's part of our culture. The nurse can appeal to the High Court and can continue to work while waiting for that hearing," he said.
One lawyer experienced in such cases does not accept these arguments. "They seem incapable of distinguishing between secrecy and confidentiality," he said. "We have an appalling culture of secrecy here, a very unhealthy and obsessive culture of secrecy.
"In England they know that if they hold these hearings in private miscarriages of justice can happen. Public scrutiny of these tribunals puts pressure on members of the tribunals to conduct themselves properly. There's a malaise there. The issues have never been properly addressed."
For the Irish Patients' Association the issue is not so much private hearings as the openness and responsiveness of the professional associations in general. "Self-regulation itself needs to be reviewed within the next five years," said Dr Tony O'Sullivan, its secretary.
"For far too long the Medical Council has been living with rather outdated Victorian status and also with very outdated legislation. There is a review of the legislation with the Minister, who should act on it."
The confrontational, legalistic format for these hearings is slow, cumbersome and not does not suit either patient or doctor, he said. "We see reconciliation as a much better way forward."