By Ann O'Loughlin

The President of the High Court is to give directions as to how the Medical Council might intervene in the HSE’s “shocking” practice of permitting medical practitioners to work as consultants in a range of specialist divisions without being on the HSE's specialist register.

This practice has been going on for ten years with 75 non-specialists appointed as consultants since 2008, Mr Justice Peter Kelly said.

He was told 52 others who have been working as consultants since before 2008 are "well-placed" to go on the specialist register but have not yet done so.

It seems "extraordinary" that the Council, the statutory body charged with protection of the public but with no power under the Medical Practitioners Act 2007 to regulate this issue, has "to stand by" and see protection of the public being undermined by the HSE in breaching its own requirements, he said.

Mr Justice Kelly said he would give a judgment in this matter on foot of which the Council might consider whether, as a statutory regulator which finds its work being undermined by another body making appointments "inimical to patient safety", it can act.

Last month, Mr Justice Kelly voiced serious concern that medical practitioners who are not on the specialist register of the HSE are being recruited by agencies to work here as consultants in hospitals with apparent knowledge of the HSE.

He queried whether the Medical Council had expressed any disquiet to the HSE and Minister for Health about the matter and adjourned the matter to allow the Council provide information to the court.

Today, Patrick Leonard SC, for the Council, said its CEO, William Prasifka, was in court and had provided a sworn statement and other documents.

The judge thanked Mr Prasifka and the Council for its comprehensive response which he described as not making "happy reading".

He was told the Council, the Heath Information Quality Authority, the Joint Oireachtas Health Committee and various other entities shared the court's concerns about this matter.

The HSE had in 2008 introduced a requirement that consultants be registered in the specialist division but, for reasons including lack of qualified specialists, it was not adhering to that requirement in some cases, the court heard.

Mr Prasifka said in his affidavit he also understands a "significant number" of practitioners holding permanent or temporary consultant posts that may have commenced before 2008 are not on the specialist register and the Council is concerned those practitioners are not taking steps to register.

Mr Prasifka said the Council continues to be very concerned about the risks associated with hospitals employing consultants who do not have appropriate qualifications.

The Council currently has no power to regulate this issue but is working with other stakeholders to eliminate the number of existing practitioners acting as consultants while not registered on the specialist register and to halt the practice of hospitals employing new consultants who are not so registered, he said.

When Mr Leonard told the judge the Council is due before the Oireachtas Health Committee on Wednesday on this matter and is seeking appropriate amendments to the relevant legislation, the judge said waiting for legislation is "the slow boat".

While the primary obligation is with the Council as regulatory body, the court also has a role under the Medical Practitioners Act in relation to public protection and would give a judgment concerning what could be done about "this unhappy situation".

When Mr Leonard said the HSE has informed the Council of risk mitigation measures it had put in place, the judge said the "best risk mitigation" was for the HSE to comply with its own guidelines and not appoint people to specialist posts who are not qualified.

While he was told the HSE will provide weekly "progress reports" about the matter, that was of little use to patients who had suffered at the hands of a radiologist in the case before him which had lead to the court articulating its concerns and who believed they were dealing with a specialist, the judge also said.

The judge last month granted the Council's application to cancel the registration of Arjan Kumar Bhatia, an experienced radiologist with an address at Drumcliffe, Co Sligo and at Northamptonshire, England, who was recruited by an agency to work as a locum consultant radiologist at Cavan General Hospital and did so between June and September 2014.

The Council's Fitness to Practice Committee (FTPC) later found a series of allegations cumulatively amounted to poor professional performance, including failures concerning CT scanning, to see liver abscess, to recognise acute stroke, and missed fractures.

Dr Bhatia previously worked over a number of years in other hospitals here despite failing the examinations for the position of consultant radiologist, the judge noted.

Dr Bhatia was employed as a locum consultant radiologist in a number of hospitals here despite not being on the Council's specialist register.