Mick Clifford: Doctor living under a cloud for 10 years while Margiotta sick note case drags on

by ianburbank18

The medical doctor was the subject of a complaint that has, for some reason, dragged on through all those years. He has been told that he will be the subject of a fitness to practise hearing by the Medical Council. He has not been told when any such hearing will take place. 

The complaint centres on whether or not he issued sick notes in an appropriate manner to his sister, who was an employee of An Garda Síochána.

The Medical Council has enormous powers, commensurate with those of a high court judge. These powers are afforded to the council on the basis that its primary function is to protect the public. 

Yet, this case would suggest that a doctor who may be deemed unfit to practise has been allowed to continue practising unimpeded for nearly a decade while his future is decided. For Dr Margiotta himself, it has meant that his life is held in suspension over a matter he contests vigorously, and which he believes originated because his sister made a complaint of bullying against a garda member.

Tony and Lynn Margiotta grew up in Finglas on Dublin’s northside. Tony was a bright student who went on to study medicine, a career opportunity that was highly unusual for somebody from that part of the city. 

Lynn Margiotta had been close to her mother and was badly affected by her death.
Lynn Margiotta had been close to her mother and was badly affected by her death. “I went back for maybe a day or two but just didn’t feel I was giving my full potential to the job. I didn’t feel I was able for it.” Picture: Collins Courts

Lynn joined the civil service in 1994 and worked for five years in the Department of Justice before transferring to civilian duties for An Garda Síochána in the Store Street station, in Dublin’s inner city. Tony went on to qualify as a GP and practised in the greater Dublin area.

The siblings’ mother fell ill in 2013, but her death in January 2014 was sudden. Lynn had been close to her mother and was badly affected by the death. She suffered from a form of depression in the following months, during which she was absent from work on up to a dozen occasions. Later, in a garda interview, she related how she had felt.

“Nothing in life prepares you for the death of a parent. My mom died very suddenly in hospital and I was there. 

I witnessed it and it had a serious affect on me and as a result I took a bit of time off work. I went back for maybe a day or two but just didn’t feel I was giving my full potential to the job. 

“I didn’t feel I was able for it.” 

The doctors’ certs to cover her sick leave were signed by Tony, who was working in the Boroimhe medical centre in Swords, where Lynn had previously attended. He also worked as a locum in a practice in Ratoath, Co Meath, from where he also signed certs. These certs had the stamp of other doctors who worked, or had worked, full-time in the two practices. 

Colin Bradley, a professor of general practice at University College Cork (UCC), stated to gardaí that it was not unusual for locums to use another doctor’s stamp while filling out sick certs. The practice, he said, was unregulated.

On July 24, 2014, Lynn Margiotta made a complaint of bullying against a garda member in the station. Issues had arisen between them over the preceding months. 

First arrest

That complaint had not yet begun to be processed when on the morning of August 11, Lynn opened her front door to be met by three officers from Store Street. 

She was on first name terms with all of them. One of the officers used to share a house with another member with whom Lynn had been in a relationship. Her first instinct was that something had happened to her elderly father.

Instead, they told her she was under arrest for suspected fraud in connection with the sick notes she had presented over the preceding months. 

That such an investigation was being conducted by colleagues with whom she worked was the first bizarre aspect to the case. It was also highly unusual that any issue over sick notes was not, in the first instance, dealt with by her line manager or human resources, but as a possible crime. 

Later, in court, Superintendent Des McTiernan, who was stationed in Store Street at the time, gave evidence that he believed Lynn Margiotta had been sick when she claimed to be. He said he had investigated whether the certs were used to obtain sick leave by deception. 

Whether she was sick or not was irrelevant, he told the court. The case, it would appear, was one of how the sick note came into being even though the employee’s ill health was accepted.

Second arrest

Over a year later, on September 15, 2015, Lynn Margiotta was arrested a second time and questioned. Ordinarily, a suspect is only arrested on a second occasion if fresh evidence comes to light. 

The doctor’s certs placed before her were all available to the gardaí at the time of the first arrest. Why they had not been produced then and why it took a further year to actually assemble them, is curious.

That evening The Herald newspaper splashed its front page with the headline: “Dublin-based garda employee arrested for using ‘fake sick certs’.” A “source” was quoted in the story stating: “She was putting in sick certs for days that is it suspected she was not sick at all.” 

The “source” obviously provided inaccurate information as Supt McTiernan told Dublin Circuit criminal court at the subsequent trial that he believed she was sick. The arrest was not high profile and would not have featured in the media had it not been leaked.

Tony Margiotta was not arrested but attended for interview with the investigating gardaí on a number of occasions in 2015.

Charge

On June 10, 2017, a Saturday, the siblings were arrested and brought to the Dublin District court to be charged. It was highly unusual for such court appearances to occur on a Saturday for a case such as this in which there are no emergency circumstances nor fears of a defendant fleeing. 

Later the court was told that the DPP directed the siblings be tried at District Court if they were willing to submit a guilty plea but otherwise it should advance to trial by jury in the Circuit court. Both opted for trial, notwithstanding the possibility of more serious sanction if found guilty at the higher court.

Six days after the initial charge one of the investigating gardaí, Inspector Brian Delaney, emailed the Medical Council. He told the council’s complaints manager Carol Fitzgerald of the charges which had followed “a lengthy investigation”. He also stated that he was making contact with the council because it might be necessary for the council to initiate an investigation of Dr Margiotta. 

On three further occasions that year, Inspector Delaney emailed the council to update Ms Fitzgerald on the advance of the case. The council considered the matter at its next monthly meeting but decided to defer it until the criminal process was completed. There was nothing to stop the council going ahead with an investigation at that point.

Trial

The case came to trial in March 2019, nearly five years after Lynn Margiotta was first arrested. 

Overseen by judge Patricia Ryan in the circuit criminal court, the early days were taken up with a voir dire, a trial within a trial, to determine what evidence would be admissible. Arising out of that, Judge Ryan ruled that Lynn Margiotta’s rights had been breached because she was denied access to a solicitor in custody and her privacy had been breached by accessing her medical records without consent. 

The latter point is particularly curious. She had a medical condition which she was entitled to keep private. If she had worked anywhere else, the gardaí would have required her consent or a warrant to access records. But for some reason such avenues were bypassed because she was a civilian employee of An Garda Síochána. As a result of the ruling the trial collapsed.

Medical Council investigation

The day after the end of the trial, Inspector Delaney wrote again to the Medical Council to update the council on the latest event. In that email, he did not specify that the trial had collapsed because of the breach of privacy in relation to Lynn Margiotta’s medical records. 

“In respect of Tony Margiotta, should you or the Medical Council require any further details, please do not hesitate to contact me,” the inspector wrote. Around that time, the Medical Council got into gear to investigate Tony Margiotta. 

The process involves an examination of a complaint by a Preliminary Proceedings Committee which then decides on whether to recommend a fitness to practise inquiry. The council contacted Dr Margiotta and he wrote back relating that “his mother, who was aged 85 years, died in January 2014″. 

“Her death was unexpected and came as a great shock especially to his sister, who was very close to her,” according to a memo of the letter. 

It went on: “Shortly after their mother’s death, Dr Margiotta says, his sister became the victim of workplace bullying. She told him what was happening and that she was finding it difficult to cope. She requested sick notes from him and issued her with sick notes.” 

The letter went on to say that the doctor was not wont to treat family members but “his sister found herself in extremely difficult circumstances.” 

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The process to determine whether there should be a fitness to practise inquiry dragged on for another three years. In 2022, the PCC decided that there should be a fitness to practise inquiry. It was another year before the council commissioned an expert report from Professor Colin Bradley, the same academic whom the gardaí had retained to produce a report in the criminal trial. 

Among the material that Bradley used to compile his report were garda files assembled for the criminal trial. This is entirely within the 2007 Medical Practitioner’s Act governing the medical council’s role. The report was done relatively promptly.

Last month, Tony Margiotta received a correspondence from the Medical Council’s solicitor, telling him that he will be served with a notice of inquiry “in due course”, which will contain the “allegations being levelled against you”.

It is now nine years and eight months since Lynn Margiotta was arrested, setting everything in train. 

Medical Council powers

The Medical Council has, in this instance, used the full force of its powers, acquiring garda files in one of the very few exceptions in which such material can be disseminated beyond the police force. 

The council has also accessed Lynn Margiotta’s medical records without her consent, which the council has legal power to do. She complained about this access under data protection laws but was told that it was within the law.

The council’s solicitor set out the law as it stands and why it was necessary to access her personal records. “You will appreciate that the council must consider any matter concerning a registered medical practitioner that has the potential to threaten public safety or damage public confidence in the profession.” 

Lynn Margiotta is taking a legal action against the State over the manner in which she was treated by An Garda Síochána. Tony Margiotta moved from general practice to a public health role. He now works for the HSE.

Sick notes

The issuing of sick notes has, over the years, been subjected to some media scrutiny. 

Investigations have been conducted which appear to show that a small minority of doctors, who are generally known by reputation, issue notes on the flimsiest of basis. They do so, it might reasonably be surmised, for the easy money that would accrue through a consultation.

The Margiotta case is of a completely different order. Tony Margiotta accepts that he issued sick notes for his sister. There are questions over whether how he did so was professional or correct. These will be decided by the Medical Council. But he did not receive any money. 

He issued the notes to a sibling who was going through the aftermath of a family bereavement, and whose employer accepts that she was suffering illness at the time. Nearly 10 years down the line, Dr Tony Margiotta still has a cloud hanging over his medical licence. 

Apart from anything else, there are questions over proportionality and the de facto imposition of serious penalty through conducting a drawn-out process.

Lynn Martiotta’s complaint of bullying in 2014 was never advanced as it was overtaken by the criminal investigation into sick notes. Whether there would ever have been an investigation, or her brother subjected to a fitness to practise inquiry, had she not made her complaint will never be known. 

When contacted, Tony Margiotta said that he didn’t want to comment at this stage while a process was ongoing.

Questions for the Medical Council

The Medical Council does not comment on individual cases but in response to a series of questions, its spokesperson issued a statement to the Irish Examiner.

One question considered the length of time that it takes to investigate a complaint. 

“Each complaint received by the council is unique and investigated as such based on the facts and available evidence. The length of an investigation varies, and is dependent on a number of factors such as the complexity of the complaint, availability of relevant documents, numbers of patients and/or doctors involved, requirement for expert reports and availability of such experts, and where a matter proceeds to inquiry, preparation of the inquiry papers and the availability of experts, witnesses, complainants required to attend before an inquiry.” 

A question immediately arises here in relation to the Tony Margiotta case. It involves the procedure of the issuing of sick notes. 

A “lengthy investigation” by the gardaí took place. The council has access to all those records. How long would a genuinely complex case take to resolve during which a practitioner’s life is on hold and the public possibly left in danger?

The council statement also addressed a question in relation to the council’s powers.

“At present, under current legislation, both the Preliminary Proceedings Committee and the Fitness to Practise Committee can issue a Production Summons and/or Direction compelling the production (including discovery) of records (for example medical records, HR files, investigation files and Garda files etc).

“The Preliminary Proceedings Committee and the Fitness to Practise Committee have all the powers, rights and privileges that are vested in the High Court or a judge of the High Court that relate to compelling the production of records.”

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