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Complaints about doctor malpractice left to languish by Medical Council



By Times of Malta - Mark Zammit - 11.02.2023 [MALTA] - [PREVENTION] Scores of complaints against medical doctors and dentists risk not being investigated and permanently shelved, as the time bar clock ticks on probes frozen for months.

Publicly available information reveals the Medical Council of Malta is yet to conclude – and in some cases even start – investigations into scores of complaints, ranging from minor ethical breaches to serious, surgery mishaps and child deaths.

Sources close to government and the council said the body quietly and unofficially halted its investigations last year after a court ruled that its probing process was unfair against a doctor being investigated.

Among the pending cases is one opened in 2021 after hospital staff found a surgical gauze lodged inside a mother who had just given birth via a caesarean operation. The woman filed a complaint against her doctor, alleging they left the gauze inside her during the operation. She said that initially the issue went unnoticed, until she returned home from hospital and began to feel severe pain, only to be rushed back to hospital where the gauze was removed from her body.

The woman filed the complaint in February 2021 and within a month the medical council set up a board of inquiry to investigate the case. The inquiry is still pending. There is an ongoing court case and the doctor denies any wrongdoing.

Similarly, a board of inquiry is yet to be initiated to investigate a separate report of a patient who complained of alleged sexual abuse by their doctor. The complaint was filed in July 2020. What makes matters worse is that medical council cases are time-barred by law, which means enough time has elapsed for dozens of them to be dropped. They were permanently archived without ever reaching a conclusion, and others risk facing the same fate. 

According to the Healthcare Professions Act, which regulates the work of the medical council, any inquiry must be concluded within a period of two years from when it is opened and any case shall be time-barred after two years from when the complainant becomes, or ought to have become aware, of the incident.

In other cases that are currently also pending in court - as in the case of the surgical gauze - the prescription period is interrupted, meaning they are not at imminent risk of being time-barred and will likely be dealt with after the court cases are decided.

Questions sent to the medical council remained unanswered.

The Medical Council of Malta regulates the medical and dentistry professions and registers new medical practitioners while safeguarding patients’ rights and safety. One of its functions is to investigate allegations of wrongdoing against medical professionals and also has the legal power to issue fines, suspend warrants and even strike professionals off the register.

The council receives around a few dozen complaints every year and, when functioning, often starts its own investigations based on news stories, for instance.

But its latest available annual report reveals it has pending complaints that go back as far as 10 years which are yet to be started. Others are still ongoing or waiting for the board of investigation to be set up. One case filed in October 2015 “is still being explored”. Why the freeze?

All investigations were frozen last year, sources close to government and the council confirmed, after a constitutional court ruled the council was acting as judge, jury and prosecutor when it investigated PN MP and physician Stephen Spiteri for allegedly issuing medical certificates without examining patients.

The judge threw out the investigation last June, saying Spiteri’s rights to a fair hearing were breached because the council’s multiple functions – from investigation to prosecution and issuing penalties – made it a “classic case of a structural lack of objective impartiality”.

But that was essentially how all reported allegations have always been treated and carried out by the council, and sources said the judgment set a precedent for all the other cases, practically disempowering the council from pursuing any investigation further.

Sources said the council fears any investigation it pursues will trigger legal proceedings similar to Spiteri’s. “After that judgment, the council lost the appetite to continue investigations, and the lack of resources and the burnout of overworked council members did not help either,” one government source said. “The council had also paused hearings during the beginning of the pandemic, which set the backlog even further.”

‘Solution is law amendment’

The only way to solve the impasse is by amending the law to allow the council to work within a more clearly defined investigative framework. Sources said the medical council has been pushing MPs for it for months, and unless it is changed, pursuing any investigation is futile.

If a solution is not found rapidly enough, the medical council’s proceedings against former Labour MP and family doctor Silvio Grixti might also eventually risk being time-barred.

Last September, Times of Malta revealed Grixti has been implicated in a years-long racket to help hundreds of people fraudulently receive monthly disability benefits they were not entitled to.

Evidence indicates the popular family doctor provided false medical documents to help people, often hailing from Labour strongholds, to receive social benefits averaging €450 monthly for severe disabilities they did not suffer from.

The medical council had opened an investigation into the case, only for Grixti to reply via his lawyers, quoting Stephen Spiteri’s case and vowing to ignore the “unconstitutional” investigation.

Unless the law is changed as soon as possible, this will continue to happen,” one source said.

“Following Spiteri’s court judgment, the council is literally unable to investigate any case further, because anything it does could be – and will likely be – challenged by medical practitioners as unconstitutional.”

Legal sources said that to avoid a judge, jury and prosecutor situation in the future, the law could allow for an independent body to be set up to take decisions on complaints filed against a doctor.

The council could still retain the power to receive the complaints, process them and investigate them but it would then need to pass the case on to the independent body which would be tasked with delivering a ruling and decide on any sanctions, if necessary.

The amended law would also allow a doctor who is found guilty to take the case to a court of appeal. Questions on plans to amend the law were also sent to the Ministry of Health. If you have been affected by any of the issues raised in this article, you can contact Dignity4Patients, whose helpline is open Monday to Thursday 10am to 4pm.


 
 

Dignity4Patients Commentary: It is concerning that in many jurisdictions, Medical Councils lack the authority, interest, or have appropriate legislation to effectively investigate, penalise, or remove healthcare workers who behave improperly. The self-regulation of Medical Councils by their own members has never been suitable. The only solution is the establishment of an independent organization, and Government Health Departments need to revise laws so that wrongdoers can be promptly penalised or expelled from the public health system.

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