Corbally ruling raises big questions on regulation

A Supreme Court ruling last month has raised major issues for regulation for health professionals in Ireland, with the legislation in question likely to be subject to review by the Minister for Health and the Government. The ruling in the case of a surgeon and medical professor, Prof Martin Corbally, who was at the centre of a Medical Council investigation, means that a hierarchy of seriousness must apply to mistakes by doctors and other professionals if findings of poor professional performance are to be made against them.

The case concerned allegations made against Prof Corbally after he incorrectly described a proposed surgical procedure in a patient’s handwritten outpatient notes. Poor professional performance is defined under the 2007 Act as a failure by the practitioner to meet the standards of competence (whether in knowledge and skill or the application of knowledge and skill or both) that can reasonably be expected of medical practitioners practising medicine of the kind practised by the practitioner.

It is clear from this definition that the legislature made no express stipulation that the conduct in question must be serious. The Supreme Court, however, held that in order to render sanctionable, either as professional misconduct or poor professional performance, non-serious failings by a medical practitioner, it would have been necessary for the legislature to use explicit language to do so.

The High Court, by way of judicial review proceedings brought by Prof Corbally, had quashed both the finding of the fitness to practise committee of poor professional performance and the decision of the Medical Council, by way of sanction, to admonish Prof Corbally.

The Supreme Court upheld that finding, noting that it had been accepted by the Medical Council that if it were necessary to prove behaviour by Prof Corbally that fell seriously short of the standard expected in order to establish poor professional performance, it could not do so.

Mr Justice Adrian Hardiman noted that there were many forms of shortcomings by a medical practitioner, as well as persons in other occupations, which, however regrettable, did not amount to a serious falling short of the expected standards of the profession.

In reaching its conclusion, the Supreme Court took into consideration the sanctions available to the Medical Council under the 2007 Act. It noted that section 71 of that Act did not make any distinction between what sanctions might be imposed where there was a finding of poor professional performance and those which might be imposed where there is a finding of professional misconduct.

Mr Justice Donal O’Donnell commented that in this regard, it did appear that the Act was “not perhaps fully thought through”.

Mr Justice Hardiman, with whose decision the Chief Justice, Mrs Justice Susan Denham, Mr Justice O'Donnell and Ms Justice Elizabeth Dunne concurred, also attached significance to this factor, finding that it was a significant aspect of the statutory scheme and meant that there was no sense in which the offence of poor professional performance was intrinsically less serious than professional misconduct:

The Supreme Court also had regard to the gravity of the mere ventilation of an allegation of poor professional performance and the potential gravity of the consequences of the upholding of such an allegation. Under the 2007 Act, the default position for hearings before the fitness to practise committee is that they are heard in public. This, along with consequent publicity, was also found to be of significance.

Mr Justice Hardiman felt that, in order to provide a medical practitioner with adequate protection of their constitutional rights to a good name and to earn a livelihood, it was necessary that there was a threshold of seriousness to be met.

As to the interpretation of that threshold, Mr Justice Liam McKechnie said that it was neither desirable nor necessary to try to elaborate upon the meaning of seriousness in the context of poor professional performance. He did note that not every error, lapse or mishap would qualify, while conduct which was trivial or minor would fall outside its meaning.

He also addressed the impact of the causative effect of an error, concluding that whilst adverse consequence or causative effect was not essential, where present it would be a factor for consideration.

The decision of the Supreme Court clarifies that it is not necessary for a regulatory body to wait for persistent or repeated substandard events to occur before it can act; to do so might lead patients to be unnecessarily compromised. The question to be considered is whether the threshold of poor professional performance has been met or not, regardless as to whether the conduct has only been committed on a single occasion.

Equally the application of a “fair sample” test, whereby an assessment of such a sample of the doctor’s work was necessary before poor professional performance could be demonstrated, accepted in principle by the High Court, was not endorsed by the Supreme Court.

To do so, according to Mr Justice McKechnie, would “seriously jeopardise the mandatory obligation on the council to protect the public from substandard competence or the performance thereof by those subject to its remit”.

While the clarity provided by the Supreme Court is to be welcomed, the impact of the judgment means that there is now no material difference between the standards of poor professional performance and professional misconduct. The question must therefore be posed as to what the intention of the legislature was, in introducing such a standard of poor professional performance.

Elaine Finneran is a barrister