FOLLOWING failed attempts behind closed doors to silence a number of hospital consultants after they publicly criticised the health service, doctors fear the HSE is trying to gag them collectively and by law.

According to sources, some consultants who have been vocal in the past have been "subtly punished" in private, including an aborted attempt by the Department of Health to have a formal complaint lodged against a consultant who had complained about inadequate facilities for patients. When the consultant's colleagues threatened their hospital that they would mount a protest in solidarity, the complaint was dropped.

"That person was very, very upset by the whole thing and vowed never to talk to anyone any more, " says a consultant colleague who does not wish to be identified. "The understanding is that the decision to lodge the report with the Medical Council came from a senior level in the Department of Health but nothing happened in the end because the hospital drew a line in the sand and said it would not allow people to be threatened like that."

In one well-publicised case, consultant oncologist Prof John Crown became the subject of an official investigation at his hospital, St Vincent's in Dublin, after he criticised the funding of capital projects and, subsequently, accused the hospital of creative accounting. "It nearly closed my research unit down, " he recalls.

Another consultant, whose damning research on the dearth of hospital resources available for a specific speciality was published prominently in the Irish Times, was called to a meeting with a HSE line manager immediately afterwards. The consultant was accompanied to the meeting by Finbarr Fitzpatrick, secretary general of the Irish Hospital Consultants' Association.

"The consultant was summoned to the meeting as a result of publishing valid and accurate research which highlighted the deficiencies in basic facilities for newly appointed consultants, " recalls Fitzpatrick. "I'm absolutely positive that, had I not been present at that meeting, the consultant in question would have been excoriated and disciplined, not because the research was inaccurate but because it was a cause of embarrassment to senior health management.

"I'm aware of threats to report consultants to the Medical Council for speaking publicly, even though the Medical Council would expect doctors to advocate publicly for patients. The determination of the HSE to silence consultants has been well-demonstrated during the long-drawn-out contract negotiations. The IHCA has stated from day one that the protection of the advocacy role and the special nature of the doctor/patient relationship were breaking points in the negotiations."

As the chaos in the health service grows more stark by the day, the clause dealing with doctors' advocacy rights and obligations in the proposed consultants' contract has become "a dealbreaker" in the negotiations to agree terms of hospital employment.

The HSE's draft contract published on 18 September last requires consultants to clarify that they are speaking in a personal capacity when they make public utterances about the system; that they must not cause unnecessary public concern or patient distress or raise unrealistic expectations.

But it is the final subclause which has produced a stalemate. It requires the consultant to "have regard to the impact his/her comments may have on the reputation of the hospital/service for which (s)he works and the morale of staff working there". Doctors argue that criticism, by its nature, has a negative impact on reputation and morale and that this subclause could be invoked to forbid them saying virtually anything.

One of the strongest recommendations in both the Finlay report on blood contamination and Maureen HardingClark's report on the maternity unit of Our Lady's Hospital, Drogheda, was that doctors must speak out when they believe patients' wellbeing is potentially compromised.

Last week, Niall Considine, a consultant ENT surgeon at Sligo General Hospital, had a strongly worded letter in the Irish Times protesting at the termination of employment of 30 nurses and four consultants there, resulting from HSE cutbacks. On the next working day after the letter was published, two of the surgeons were called in and given three-month contracts to remain at Sligo Hospital.

Considine says this chronology of events may or may not have been a coincidence. Asked if he believes the HSE is trying to stop consultants from publicly criticising the service, he replies: "I think they're trying to exercise a degree of control over what is said in public and I think these clauses in the draft contract are designed to make it less likely that people will speak out."

A directive of the World Medical Association stipulates: "Should medical practitioners perceive circumstances which might adversely affect patient health, it is their duty to inform responsible authorities so that remedial action may be taken. Should responsible authorities decline to take remedial action, reasons for the decisions should be made known to the medical practitioners who reported the circumstances. Should such notification not be provided or should the rationale for the decision prove unconvincing, the medical practitioners concerned have a duty to take further actions."

Last March, the head of the HSE's national press and media relations office, Alex Connolly, issued a memo to hospital consultants in the Dublin northeast region instructing them to log any calls they received from journalists in an official "Press Call Form" and to notify all such contacts to the area communications manager.

Advising that "all media contacts must be coordinated through the Area Communications Office", the memo added that "nominated spokespersons" must contact the communications manager before agreeing to media interviews or writing articles for publication relating to the transfer of services under the Teamwork Implementation Project.

"This is not put forward as a control mechanism, " the memo stated, "but to ensure that all nominated spokespersons have access to the most up-to-date information and to ensure a consistent message."

Dr Christine O'Malley, a consultant geriatrician at Nenagh General Hospital and former president of the Irish Medical Organisation, believes doctors have become more circumspect about their public utterances since the contract negotiations began.

"The attempt to keep consultants quiet isn't being done in an explicit way. It's subtle and by implication, " she says. "The obvious case being that of Prof Des O'Neill [author of the Leas Cross nursing home report] who was told his indemnity might not cover the report. They would argue that they only pointed it out to him but any doctor writing a report like that would have felt threatened. In Leas Cross itself, there had been plenty of documented concern by doctors and medical professions that wasn't acted upon.

"We all advocate constantly within the system. To advocate outside the system is actually a big step to take. Twice in the last week, people who I know have told me they have started to feel uncomfortable about talking to the media. It has been suggested to me by colleagues and by family that I should stop doing it because it might only harm my patients if it's interpreted as anti-hospital."