An Irish doctor has been suspended for not administering vaccinations, not referring patients for testing and not operating his practice in compliance with public health measures.

Medical Council v Dr Gerard Waters. [2021] IEHC 252

The complaint

In brief, Dr Gerard Waters was subject of a complaint by a patient who visited his surgery (on 16th September 2020) with suspected Covid symptoms.  The patient complained to the Irish Medical Council that they were “treated to a barrage of nonsense about the ‘hoax that is Covid-19’” and that “the state and the government are scamming the people.”  Furthermore, while waiting in the waiting area, the complainant noticed a photocopied pamphlet with the title “No pandemic killing us”.

The patient was also advised by Dr Waters that the wearing of masks was causing illness.

By letter dated 12th February 2021, Dr Waters was contacted by the Health Service Executive (the “HSE”) in response to a fax he had sent indicating that he did not intend to administer the Covid-19 vaccine to his patients. In that letter, the HSE requested that he provide the HSE with the name, address, date of birth, contact number and email address of his patients aged 85 and over and those aged 70 and over. He has yet to comply with that request.

Interim Suspension Hearing and Order

The Irish Medical Council rules provide for an application to the High Court if the council believes that a doctor’s suspension pending disciplinary proceedings is necessary to protect the public.

The Medical Council sought an Interim Suspension Order on the grounds that Dr Waters:

  • does not operate his practice so as to comply with public health measures because no masks are worn by him or his staff and the wearing of masks by patients is not encouraged or enforced. Furthermore, no physical distancing measures are in place and Dr Waters continues to operate walk-in appointments contrary to public health advice;
  • failure to refer patients for Covid-19 testing who show relevant symptoms;
  • has made it clear that he will not administer the Covid-19 vaccine; and
  • is undermining the public health message more generally with the comments he sees it as his duty to make to his patients.

In response, Dr Waters raised two points:

First, he argued that the conduct complained of is protected in light of his rights as a conscientious objector as set out para. 49 of the Guide to Professional Conduct and Ethics for Registered Medical Practitioners wherein it is set out that a doctor may refuse to provide treatment or care if it conflicts with any sincerely held ethical or moral values.  He stated the “convictions that he holds concerning Covid-19 and the Covid-19 vaccine are those over which there can be reasonable disagreement and are consequently protected by his right of conscientious objection.”

Second, Dr Waters argued that his conduct is not causative of the negative consequences for his patients relied on by the Council. Regarding his stance on vaccines, he contends that there is already significant vaccine scepticism in the general population and indeed amongst other medical practitioners and that his actions relating to other Covid-19 matters do nothing to undermine the public health effort.

Undertaking

To the High Court, Dr Waters proposed an undertaking that, in brief, he would:

  1. cooperate with the HSE in relation to the vaccination of patients in respect of Covid-19 and to provide information for patients falling within the vaccination regime;
  2. make the necessary arrangements to facilitate referrals of patients with Covid-19 symptoms;
  3. provide such necessary intervention in accordance with the guidelines laid down by the HSE; and
  4. inform my patients of the nature of my conscientious objection and inform them of their right to seek treatment from an alternative practitioner.

Ruling

In her ruling, Ms. Justice Mary Irvine, was satisfied that an Interim Suspension Order was necessary and appropriate under the circumstances.

In relation to Dr Waters’ “conscientious objection to administering a vaccine”, she said:

I am of the view that it is unlikely that any conduct on the part of the respondent other than that which relates to his unwillingness to administer the Covid-19 vaccine, would likely be protected on this basis. Furthermore, whilst in principle I can see how a medical practitioner might invoke a conscientious objection to administering a vaccine which he or she considers had been licensed prematurely or in circumstances where there was evidence to suggest that its risks and efficacy had not been truly established, it will be very difficult for the Respondent to defend his conduct, even thus far on this basis.

Whilst the undertakings proposed did not persuade Irvine J, she commented nonetheless:

All of that said, it is important in the context of the present application for me to pay due regard to the undertaking which the Respondent is now prepared to give in relation to the delivery of the Covid-19 vaccine. And, having done so, I accept that any negative consequences for patients resulting from the Respondent’s conscientious objection to administering the Covid-19 vaccine can, going forward, be catered to by the undertaking.

On the remaining issues, she continued:

Turning then to the Respondent’s failure to carry on his practice in a manner compliant with public health measures and his failure to refer patients for Covid-19 testing. While these are matters which will have to be considered by the Fitness to Practice Committee in due course, they are nonetheless omissions which the Respondent will find difficult to defend on the basis of conscientious objection or indeed any other basis.

Furthermore, it is hard to see how the Respondent’s rights of conscientious objection could entitle him to make decisions for his patients regarding the risks he believes they should be willing to accept when visiting his practice. His failure to refer patients for testing when they present with Covid-19 symptoms and in failing to advise such patients to self-isolate and knowingly to operate his surgery in a manner which increases his patients’ risks of contracting or spreading Covid-19 are difficult to excuse on any grounds. Conscientious objection rights surely do not permit doctors to place their patients at risk? The Council was therefore correct to consider the Respondent’s conduct in this regard as serious, even in spite of his rights regarding conscientious objections.

Concluding her judgement, she said:

“In circumstances where it is admitted that the Respondent has failed to refer any patient for Covid-19 testing since the commencement of the pandemic and that he does not operate his practice in compliance with public health measures, the case against him when considered by the Council on the 17th February, 2021 was, I believe, of sufficient strength to justify this s. 60 application. In light of this and all that has earlier been stated, I am satisfied that the allegations made against the Respondent may well be considered to amount to a serious breach of professional conduct and that the evidence against the Respondent should indeed be categorised as strong.

“In this respect the Respondent’s behaviour has posed and will, unless curtailed, continue to pose a fundamental danger to his patients and those with whom they live or work for as long as Covid-19 or one if its variants are prevalent in the community. Given the dangers inherent in the Respondent’s behaviour to date and his unwillingness to remedy the situation in a manner to remove his patients from unnecessary risk, it is likely that if found guilty of professional misconduct it is reasonable to conclude that he would be struck of the register either for a definite period or on a permanent basis.”

Comment

Whilst much of this case turned on the individual circumstances of the case, it raises interesting questions about the rights of doctors to rely on the right of “conscientious objection” and when it is deemed appropriate to exercise the right.

Although this case was in the context of the Irish Medical Council, doctors need to be aware of the guidance issued by the GMC on the issue of conscientious objection.

In brief, doctors may practise medicine in accordance with their beliefs, including “conscientious objection”, provided that doctors:

  • act in line with relevant legislation;
  • do not treat patients unfairly;
  • do not deny patients access to appropriate medical treatment or services; and
  • do not cause patients distress.

If any of these criteria cannot be met, doctors must provide effective patient care, advice or support, whatever their personal beliefs.

Disclaimer: This article is for guidance purposes only. Kings View Chambers accepts no responsibility or liability whatsoever for any action taken, or not taken, in relation to this article. You should seek the appropriate legal advice having regard to your own particular circumstances.

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