Mental Health Commission Refuses to Investigate Cover-Up of Medical Misconduct Despite ‘Smoking Gun’

Despite being presented with documented “smoking gun” evidence from medical prescription records obtained after lengthy FOI appeals, the Mental Health Commission today refused to initiate an investigation into a cover-up of medical misconduct by a centre's registerd proprietor in which a former MHC CEO and Inspector were complicit..

Article: 13.04.2010
Mental Health Commission Refuses to Investigate Cover-Up of Medical Misconduct Despite ‘Smoking Gun’ Evidence
Despite being presented with documented “smoking gun” evidence from medical prescription records obtained by a patient’s family after lengthy Freedom of Information appeals, the Mental Health Commission today refused to initiate an investigation into a cover-up of medical misconduct. We ask “Why has the Mental Health Commission, which is chartered to protect patients in the Mental Health System from abuses of their human rights and medical rights and for which services the people of the Republic of Ireland pay approximately Euros 17 million per year, refused to perform the public duties that it was intended to do?”

Mr Ray Mooney (MHC Director of Corporate Services), Dr Pat Devitt (MHC Inspector of Mental Health Services), and Mr Hugh Kane (MHC CEO) refused to initiate an investigation into a cover-up of medical misconduct that took place in early 2008. The cover-up started when Registered Proprietor Leo Kinsella, of the Cavan/Monaghan Mental Health Centres, made misstatements of material fact (when ordered to reply) to former Inspector Dr Rhona Jennings, which is an indictable offence under the Mental Health Act 2001.

The Mental Health Commission’s former CEO Brid Clarke and Inspector Rhona Jennings were informed of the medical misconduct in early 2008 by the patient’s next of kin, as well as by the patient’s solicitor at the time, Mr Peter Connolly, who works for the MHC and represents patients in Mental Health Tribunals.

As a result of the family’s complaint, Inspector Jennings required Mr Leo Kinsella, the Registered Proprietor of the Cavan/Monaghan approved centres (Cavan General Hospital and St Davnet’s Hospital in Monaghan) to respond to the allegation that Clozapine had been improperly administered at Cavan General Hospital on 10 July 2007 without the required CPMS registration with Novartis (the manufacturer) and required pre-medication work-ups including mandatory blood tests and recommended cardiologist’s assessment.

Due to the serious risk of agranulocytosis, tachycardia, and other potentially fatal side effects, Clozapine use is tightly monitored by its manufacturer Novartis through a Clozaril Patient Monitoring System (CPMS). This system (CPMS) includes requirements and recommendations for testing and monitoring the patient before and during Clozaril [Clozapine] treatment.

In his reply letter of 24 January 2008, to Inspector Rhona Jennings and solicitor Peter Connolly, Registered Proprietor Mr Leo Kinsella flatly denied that the medical misconduct at Cavan General Hospital had ever taken place. He wrote:

“Mr. [redacted] did not commence Clozapine until December 2007 in St Davnets Hospital. It was never administered while Mr. [redacted] was a patient in CGH.”

Solicitor Peter Connolly then notified CEO Brid Clarke on 6 February 2008, that he had sighted evidence of the medical misconduct in the patient’s Clinical Notes:

“I have read with interest, Mr. Kinsella’s reply of the 24th January 2008 a copy of which has been sent to Dr. Jennings Assistant Mental Health Act Inspector. With regard to the issue of Clozapine, I wish to include a copy note made by me when I attended St. Davnet’s on the 31/12/07. I reviewed [redacted]’s clinical notes and on an older cardex an entry appears for the 10/7/07 “Clozapine 125 mg 10/7/07 at 12”. [redacted] was a patient in Cavan at the time. I am not a doctor but the position to summarise my own medical experts is that Dr. Shaw does not rule out clozapine provided necessary pre work ups had been carried out. Dr. McCaffrey has stated that were [redacted] his patient he would have maintained him on his older anti-psychotics as he was stable and he expressed his view that clozapine was not appropriate given his heart condition and age profile given his diagnosis of treatment resistant schizophrenia I would be obliged if you would pass this letter and its contents to Dr. Jennings in this regard.”

In doing so, solicitor Peter Connolly, who is an “Officer of the Court” notified MHC that Clozapine had been administered to the patient at Cavan General Hospital without the necessary medical work-ups and that Registered Proprietor Leo Kinsella had made a misstatement of material fact, which is an indictable offence under the Mental Health Act 2001.

The documented facts are:

• The Novartis Confirmation for Clozaril [Clozapine] Treatment form records that the bloods were taken on 27/11/2007 and that the CPMS registration date was 30/11/2007. The patient’s family has independently confirmed this registration date with Novartis. In fact, this blood test and the CPMS registration date were months after the administration of Clozapine sighted by Mr Connolly in the clinical notes (10 July 2007), which had been previously reported to MHC.
• The patient was not registered with the CPMS at the time Clozapine (Clozaril) was first prescribed on 10/07/2007, and he had not had the mandatory blood work-ups.
• The Clozapine [Clozaril] administered in 10/07/2007 was prescribed by a locum doctor, who is not a registered psychiatrist. A mere locum is not allowed to administer this drug. In accordance with the mandatory CPMS (Clozaril Patient Monitoring System), only a fully trained consultant psychiatrist is allowed to do this.
• In administering the Clozapine [Clozaril] without the necessary registration or work-ups, the treating locum failed to act with ordinary care required of a consultant psychiatrist. The locum’s practices would not pass the “Dunne test” (Dunne -v-National Maternity Hospital [l981] IR 91), which is the standard used to determine if a questionable action reaches the level of medical misconduct.
• In addition, the patient - who has a cardiac history and underwent hole-in-the-heart surgery, which was only partially successful - had not been assessed for Clozapine [Clozaril] by a cardiologist, as recommended by manufacturer Novartis. His heart was not regularly monitored as recommended by Novartis, and his reported side effects, including heart pain and tachycardia, were dismissed by his treating locum as “wind.”
• Registered Proprietor Leo Kinsella had provided Inspector Jennings with evidence of an echo cardiogram, but this was administered by a technician only at Cavan General Hospital months before the first Clozapine treatment and was without benefit of the recommended cardiologist’s assessment or a much more thorough electro cardiogram (EKG). Registered Proprietor Leo Kinsella also provided a statement from a neurologist that an MRI test taken at about the same time had shown an ischemic brain change, but that this change in itself was not a contra-indication for Clozapine treatment. There was a significant time gap between these tests and the first administration of Clozapine on 10 July 2007. An even greater time gap of eight months occurs between these incomplete tests and the date on which Registered Proprietor Kinsella claims that the Clozapine had commenced.

Despite the fact that MHC received a letter from Solicitor Peter Connolly affirming that Mr Connolly had sighted a record of Clozapine administered in 10 July 2007, and despite Registered Proprietor Leo Kinsella’s contradicting misstatement that Clozaril (Clozapine) had not commenced until December 2007, Inspector Jennings and CEO Clarke took no further action in this matter; effectively ignoring a letter from an Officer of the Court (solicitor Peter Connolly) and a Formal Complaint And Request For Investigation filed by the family. These documents formally notified the Mental Health Commission that Registered Proprietor Leo Kinsella had committed indictable offences under the Mental Health Act 2001 by making such a misstatement of material fact to the Inspector.
The Mental Health Act 2001 stipulates that:

53.—A person who—
(a) obstructs or interferes with the Inspector while he or she is
exercising any power conferred by or under this Act, or
(b) fails to give any information within his or her knowledge
reasonably required by the Inspector in the course of
carrying out his or her duties,
shall be guilty of an offence under this section and shall be liable
on summary conviction thereof to a fine not exceeding £1,500 or to
imprisonment for a term not exceeding 12 months or to both.

64-1(5) The Commission shall not—
(b) remove a centre from the Register, unless—
(i) it is of opinion that—
(I) the premises to which the application or, as the
case may be, the registration relates do not comply
with the regulations, or
(II) the carrying on of the centre will not be or is not
in compliance with the regulations,
or
(ii) the registered proprietor has been convicted of an
offence under this Part, or
(iii) the registered proprietor has failed or refused to furnish
the Commission with information requested by
it pursuant to subsection (8) or has furnished the
Commission with information that is false or misleading
in a material particular, or
(iv) the registered proprietor has, not more than one year
before the date from which the registration or
removal from the register would take effect, contravened
a condition under subsection (6).
(6) (a) The Commission may—
(i) at the time of registration or subsequently attach to
the registration conditions in relation to the carrying
on of the centre concerned and such other matters
as it considers appropriate having regard to its functions
under this Part,
(ii) attach different conditions to the registration of
different centres, and
(iii) amend or revoke a condition of registration.
(b) Without prejudice to the generality of paragraph (a), conditions
attached to the registration of a centre may—
(i) require the carrying out of essential maintenance or
refurbishment of a centre or of specified areas within
a centre,
(ii) require the closure, temporarily or permanently, of a
specified area or areas within a centre,
(iii) specify the maximum number of residents which may
be accommodated in a centre, or in a specified area
or areas within a centre,
(iv) specify the minimum number of staff required to be
employed in a centre,
(v) require the introduction or review, as the case may
be, of specified policies, protocols and procedures
relating to the care and welfare of patients and
residents,
(vi) require the introduction or review, as the case may
be, of specified policies, protocols and procedures
relating to the ordering, prescribing, storing and
administration of medicines,
(vii) specify measures to be taken to ensure that patients
and residents are informed of their rights under this
Act.
(c) Conditions imposed under this subsection or amendments
and revocations under this subsection shall be notified in
writing to the registered proprietor of the centre
concerned.
(7) An application for registration shall be in a form specified by
the Commission.
(8) (a) The Commission may request an applicant for registration
or, as the case may be, a registered proprietor to furnish
it with such information as it considers necessary for the
purposes of its functions under this Part.
(b) A person who, whether in pursuance of a request or otherwise,
furnishes information to the Commission for the
purposes of this Part that is false or misleading in a
material particular shall be guilty of an offence unless he
or she shows that, at the time the information was furnished
to the Commission, he or she was not aware that
it was false or misleading in a material particular.

The family’s formal complaint and notice was initially sent to:
• MHC CEO Ms Brid Clarke,
• Inspector Rhona Jennings,
• The Medical Council Registrar Mr John Lamont,
• Minister Mr James Devins TD, and
• Minister for Health & Children Ms Mary Harney TD
Ms Laverne McGuinness, National Director of PCCC, and The Taoiseach, Mr Brian Cowen, TD were copied on correspondence ensuing from this complaint.

Later in June 2008, the patient’s sister followed up the complaint with current MHC Inspector Pat Devitt and notified him of the medical misconduct and cover-up. Inspector Devitt had access to all the files and letters that had previously been provided in early 2008 by the family, by Solicitor Peter Connolly, and by Registered Proprietor Leo Kinsella; and Inspector Dr Pat Devitt had on-demand access to all medical records at the Cavan/Monaghan centres. Inspector Devitt took no action.

On 1 April 2010, the patient’s family who had travelled from Australia to Ireland, personally presented the Mental Health Commission’s Director of Corporate Services Mr Ray Mooney with the “smoking gun” evidence of the medical misconduct, which had been previously ignored in 2008 by MHC’s refusal to investigate. This evidence included medical charts and a Kardex clearly showing that the treating locum had prescribed “Clozapine 125 mg 10/7/07.” It had taken the family two years of stonewalled Freedom of Information requests to HSE and numerous appeals to the Office of the Information Commissioner to obtain these records. Director of Corporate Services Ray Mooney promised the family to bring the released evidence to the attention of CEO Hugh Kane and Inspector Pat Devitt. The family pointed out that this evidence, which took the family years to uncover, was already available to the Inspector in early 2008 and that the family, as well as the patient’s solicitor at the time, had notified MHC exactly where the evidence of original misconduct could be found, and had informed MHC of the fact that Registered Proprietor Leo Kinsella’s misstatements to the Inspector were an indictable offence. The family informed Director of Corporate Services Ray Mooney that the Mental Health Commission’s former CEO Brid Clarke, as well as both the present and past Investigators, had refused to investigate medical misconduct after being notified by the patient’s solicitor Peter Connolly.

The family graciously agreed to await the outcome of Director Mooney’s correspondence and meetings with current Inspector Pat Devitt and CEO Hugh Kane on the released evidence, which Mr Mooney acknowledged was evidence of medical misconduct. Director Mooney had also acknowledged that it was in the Mental Health Commission’s power to close an approved centre, which had perpetrated such a cover-up by making misstatements of material fact to an Inspector of Mental Health Services.

Today, 13 April 2010, Director Mooney informed the family by facsimile that

“The present position is that your brother’s case has been reviewed on a number of occasions and no further action is deemed necessary at this time.”

Despite the fact that the former CEO Brid Clarke has been replaced by a new CEO Hugh Kane, the Mental Health Commission continues its dysfunctional “light handed” approach and appears incapable of disciplining the mental health establishment, which under the new Mental Health Act is meant to be respecting patient’s human rights and medical rights since 2001. MHC’s failure to live up to its obligations worsens at a rate only exceeded by their unacceptable excuses as reported in their latest 2008 Annual Report (available for download on their website) claiming that they need further funding. In reality, it is not a lack of money, it is a lack of accountability by Minister Mary Harney TD, who has failed to rein in HSE and has let her oversight of the Mental Health Commission slacken.

For further information on this story please contact:
antsionainn (at) swanriver.com.au