Appeal dismissed; a minor clerical error did not meet the threshold for poor professional performance under the Medical Council Act.

THE SUPREME COURT

Appeal No: 37/14

Denham C.J.

Hardiman J.

O’Donnell J.

McKechnie J.

Dunne J.

Between/

MARTIN CORBALLY

Applicant/Respondent

and

THE MEDICAL COUNCIL, IRELAND

AND THE ATTORNEY GENERAL

Respondent/Appellant

Judgment of O’Donnell J delivered the 4th of February, 2015.

1. I agree with the judgment of Mr Justice Hardiman on this matter, and wish to add only a few comments on matters which arose in

the course of argument. I can fully understand why the parents in this case made a complaint about the treatment afforded to their

child. It is important to remember that this case arose because a child who was due to have a simple surgical procedure had the

operation carried out on the wrong frenulum. The child had to be readmitted so that the correct surgery could be carried out.

Mercifully there were no other serious consequences, but the fact that a patient could be admitted to a busy hospital under the care

of a number of medical professionals, and have the wrong operation carried out was, and ought to be, a matter of serious concern. It

was entirely proper that it should be investigated. But the only person or institution who received disciplinary sanction was Professor

Corbally. For the reasons so carefully and lucidly traced in the judgment of that Mr Justice Hardiman delivers today, Professor Corbally

made a slip of the pen which, coincidentally, misdescribed the operation to be carried out, but which did not have any causal

consequences in that it did not cause, lead to, or contribute to the wrong operation being carried out. Accordingly I agree with the

characterisation of this error on behalf of the Medical Council as not “serious”. I also agree with both Mr Justice Hardiman and Mr

Justice McKechnie that only a serious error or a series of errors (which may therefore be serious) can justify a finding of poor

professional performance. I agree in particular that given the fact that these hearings are conducted in public, and findings are made

public, that even the lowest sanction of admonishment can have devastating consequences for the career and livelihood of the

individual concerned. It follows that in my view, for reasoning essentially similar to that set out in the judgment of Keane J in O’Laoire

v Medical Council (27th of January 1995) that it was intended that such consequences should not be visited upon a petitioner other

than in cases which passed a threshold of seriousness.

2. I do not however agree that serious should mean “very serious” or that it can be said that only conduct sufficiently serious to call

in to question a doctor’s registration which means subjecting a doctor to the ultimate professional sanction of being struck off, is

sufficient to justify a complaint or finding of poor professional performance under the Medical Practitioners Act of 2007. While I agree

that the analysis in R. (Calhaem) v. The General Medical Council [2007] EWHC 2606, is helpful, it must be applied with some caution.

In particular, while it may have been permissible in that case to seek to read back from the sanctions capable of being imposed, come

conception of the conduct sufficient to merit such sanctions, it is important to bear in mind, that s.35D of the Medical Act of 1983

which was in issue in that case, only permitted striking out, suspension for up to 12 months, or the making of a registration

conditional on compliance with requirements specified by the UK Fitness to Practise Panel. In such circumstances it may be correct to

say as the General Medical Council in the UK has, that only alleged conduct which is capable of calling in to question the registration

of a practitioner can be the subject of a complaint of deficient professional performance, since the sanctions all involve the

registration of the individual and indeed their capacity to practice.

3. By contrast, s.71 of the 2007 Act while providing for cancellation, suspension, or the attachment of conditions to a registration,

also provides for other and lesser penalties including censure and fine not exceeding £5,000, or admonishment, censure, or even

advice, in writing. Accordingly it is not possible I think to read the 2007 Act as meaning that only conduct sufficiently serious to put

registration in issue is covered by the Act: in my view the conclusion to be drawn from the statutory scheme, is that conduct which

is sufficiently serious to merit public censure, admonishment or advice, may constitute poor professional performance. I do agree

however, that even then, given the consequences for an individual, which as Hardiman J points out, may be life and career changing,

that there is a seriousness threshold which, it was agreed in this case, correctly in my view, was not passed. The reasoning in

O’Laoire is persuasive, but in any event must be taken to be approved by the Oireachtas since it adopted the same language for

professional misconduct as had been interpreted in that case. Since as my colleagues observe no distinction is made in the statute

between the sanctions for professional misconduct and poor professional performance, it seems to follow that the same threshold

must apply. It does appear that the 2007 Act in this regard was not perhaps fully thought through, and neither entirely adopts the

position in the UK (which might have many practical benefits given the professional exchange between the two jurisdictions) nor

establishes a fully coherent and independent scheme of professional supervision and discipline. In the circumstances I entirely agree

that the finding of the learned President should be upheld and the appeal in this regard dismissed.

4. I also agree that the failure to explain whether or not the Fitness to Practise Committee was departing from the legal assessor’s

advice that there was a seriousness threshold, is a further ground to quash the decision. The significance of an absence of reasoning

on a point of this importance is neatly highlighted by the particular facts of this case. Either the Fitness to Practise Committee

accepted the advice of the legal assessor but nevertheless found (and contrary to the position now accepted by the Medical Council)

that the conduct here was serious and merited sanction, or, it departed from that advice (erroneously as it now appears in the light

of the decision of the High Court and this Court) and considered that an error itself not serious, could nevertheless amount to poor

professional importance. There is even the possibility that different members of the committee could have come to different

conclusions on this issue and yet agreed on the result. The Medical Council to which the report is directed, the profession generally,

members of the public, and not least the individual concerned are entitled in my view to know how the Fitness to Practise Committee

dealt with this issue, which might be central to the amount of confidence which any of those entities might have in the conclusion to

which it came. Like Mr Justice Hardiman, I do not think it necessary to address here the question of resort to parliamentary debates

as an aid to construction in this case: it was in my view proper to bring the parties attention to the precise reference, because the

interpretation was said to represent the views of the Medical Council, one of the parties in the case which was contending for a

different interpretation. In the circumstances I would dismiss the appeal.