Medical Council appeal dismissed; single minor error does not meet poor professional performance threshold.

THE SUPREME COURT

JUDICIAL REVIEW

[037/2014]

The Chief Justice

Hardiman J.

O’Donnell J.

McKechnie J.

Dunne J.

BETWEEN

MARTIN CORBALLY

APPLICANT/RESPONDENT

AND

THE MEDICAL COUNCIL, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS/APPELLANTS

AND

THE HUMAN RIGHTS COMMISSION

NOTICE PARTY

JUDGMENT of Mr. Justice William M. McKechnie delivered on 4th day of February, 2015

Background:

1. The applicant in these judicial review proceedings and the respondent to the appeal is a highly regarded Paediatric and Neonatal

Surgeon, domestically and internationally, having been a Consultant in Crumlin Hospital (“the Hospital”) from 1993 until 2011. Since

2003 he has also been an Associate Professor in Paediatric Surgery at the Royal College of Surgeons in Ireland (“R.C.S.I.”). In 2011 he

took a sabbatical and went to Bahrain, where he presently holds a number of similar clinical and academic positions. Evidence,

accepted by the learned trial judge, that he was “an excellent surgeon with exceptional skills, an exceptional communicator and gifted

teacher with a passion for teaching”, is not in controversy. Peer reviews confirm the essence of this description. Mention I make of

these matters is not only for background purposes, but also to illustrate how even a censure by his professional body, could have

such a devastating personal and professional effect on him. However, it must likewise be stressed, that if justified by reference to

relevant considerations, there is a significant public interest in the proper functioning of the underlying process, by which such a

decision has been arrived at.

2. On examination of patient X on the 25th February, 2010, Professor Corbally correctly diagnosed her referring complaint but in his

out-patient notes inaccurately described it as an “upper lingual frenulum”. There are three frenula (congenital folds of tissue) in the

mouth: an upper frenulum (between the inner aspect of the upper lip and the anterior gum margin), which can also be referred to as a

“upper labial frenulum”: a lower frenulum (between the lower lip and the anterior low gum margin) and a tongue or lingual frenulum

(under the anterior surface of the tongue). There is no frenulum that can be accurately described as an “upper lingual frenulum”. That

was an error on his part which was also included in a letter which he sent to the patient’s General Practitioner (“G.P.”) on the 11th

March, 2010. Thereafter however, it was never repeated in any subsequent note or record, made or endorsed by him.

3. When booking the patient in, Professor Corbally described the intended procedure as a “Tongue Tie (Upper Frenulum)”. That was

an accurate description of the procedure intended to relieve the patient of her complaining symptoms. As a matter of some serious

surprise is the fact that, in the Hospital’s coding system at the time, all of the three procedures relating to mouth frenula were

described as “Tongue Tie”, without distinction being made between any one or more of them. A doctor could however, when

contacting the Admissions Department, add a clarification by way of “free text”. The applicant did so, by further describing the

procedure as involving the “Upper Frenulum, ” but unfortunately, some unknown administrator omitted the “free text” when inputting

the intended procedure into the system. That input is used to generate the theatre list. It therefore followed that as the clarifying

words were omitted, they were not included in the theatre list,as information pertinent to this patient.

4. On the 30th April, 2010, Patient X was admitted: the parents of this very young child specifically told both the Senior House Officer

(“S.H.O.”), who obtained consent to the procedure, and the accompanying nurse, that the problem was not her tongue, but that she

needed an upper lip release. This was once again accurately recorded in the consent form by the S.H.O. as a “Tongue Tie (Upper

Frenulum) release”, and in a Nursing Assessment Sheet by the nurse as “Tongue Tie release (Upper Frenulum)”. The nurse in question

passed a correct description of the required procedure onto her manager, who should have, but did not transmit the information

upwards, to include the surgical team, as required by hospital policy.

5. As it happened, Professor Corbally, could not, as he had intended, do his full theatre list on the day in question. He had to attend

an exceedingly ill patient in the Intensive Care Unit (“ICU”) . He asked his senior registrar to start the list until he was ready to

resume it: this included carrying out the procedure on Patient X. This was totally within the capacity of that registrar and nothing

turns on this delegation. In doing so, there was no additional information furnished to the registrar save that which appeared on the

theatre list which simply recorded the procedure as “Tongue Tie”.

6. To ensure that it is the correct patient, correct procedure and at the correct site, the hospital has a policy, entitled “Correct Site

Surgery Policy”, which requires the surgical team to “pause” or take “time out” before commencing an operation. The file which

included all of the above information, save for the letter to the G.P., is with the patient at this time. Some form of time out

apparently did take place in this case, but even if no document was looked at, other than the respondent’s incorrect note, any

competent doctor would instantly have recognised that there was no procedure known as “Upper Lingual Frenulum”. If observed or

detected, a simple inquiry would have identified the error and prevented an incorrect dissection, namely a “Tongue Tie”, the third of

the type referred to at para. 2 above, from having first taken place. Very shortly thereafter this error was noticed by Professor

Corbally, the parents were informed and later that day their child had the correct procedure carried out. Some added discomfort and

pain followed but very quickly the entire incident had passed for the patient.

7. The parents understandably were disturbed and made a complaint to the Medical Council. The Preliminary Proceedings Committee

(“P.P.C.”) was satisfied that further action was warranted and thus, referred the matter to the Fitness to Practise Committee

(“F.P.C.”). That Committee notified Professor Corbally of its intention to hold an inquiry under Part 8 of the Medical Practitioners Act

2007 (“the 2007 Act”). As required, the doctor was informed of the allegations against him. In all these totalled nine in number. After

a five day hearing the F.P.C. found that allegations 1, 6 and 8, by reference to poor professional performance, had been proven and

in its report to the Medical Council, recommended that the doctor be censured or admonished. The other allegations fell away in the

manner later described. The Medical Council accepted this recommendation and consequently, issued the admonishment as

suggested.

8. By reason of the relevant statutory provisions the only course available to Professor Corbally so as to challenge the findings made,

was to seek leave to apply for judicial review. His claim was that the failure of the 2007 Act to provide for an appeal on the merits

from the findings made and the sanction imposed, breached certain of his constitutional rights and for that reason, was

unconstitutional. He also claimed that such failure was incompatible with the State’s obligations under Article 6 of the European

Convention on Human Rights: these claims, by agreement, were held over until the other issues had been determined. As it happened

the applicant was successful in that both the leave application and the subsequent application for substantive relief were decided in

his favour. For the reasons set out in his judgment, the learned President of the High Court concluded that the first named

respondent had committed or was responsible for, a series of legal errors which could only be corrected by quashing the findings of

the F.P.C. and the subsequent sanction imposed by the Medical Council. It is the Medical Council’s appeal from that decision which is

now the subject matter of this judgment.

The Allegations Made:

9. It is necessary now to set out the charges which Professor Corbally faced: these are contained in the notice issued by the F.P.C.

when communicating its intention to hold an inquiry. The details are as follows:-

“That you,…

1. On or around 25h February 2010 incorrectly described the procedure required for Patient X in her

medical records as excision of “Upper Lingual Frenulum” and/or

2. On or around 11 March 2010 completed an admissions card dated 11 March 2010 in respect of

Patient X incorrectly recording Patient X’s diagnosis as “Tongue Tie (Upper Frenulum)” and/or

3. On or around 30 April 2010, failed to ensure that the consent form signed by Patient X’s father prior

to Patient X’s first surgery, adequately described the procedure to be performed and/or

4. Prior to Patient X’s first surgery on around 30 April 2010, failed to ensure that a team meeting

occurred in relation to the procedure planned for Patient X and/or

5. On or around 30 April 2010, failed to tell Patient X’s parents, either personally or through a member of

your team, that you would not be performing Patient X’s first surgery and/or

6. On or around 30 April 2010, delegated Patient X’s surgery to Dr. Fahran Khaliq Tareen (“Dr. Tareen”)

in circumstances where you failed to communicate adequately or at all to Dr Tareen the procedure to

be performed on Patient X and/or

7. On or around 30 April 2010, failed to supervise, either adequately or at all, Patient X’s surgery and/or

8. Failed to apply the appropriate standards of clinical judgment that could be expected from a surgeon

with your experience or expertise and/or

9. Such further allegations as may be notified to you in advance of the inquiry.”

These allegations were levelled as “allegations of professional misconduct and poor professional performance”, without distinction

being made between either or as to any particular allegation.

Findings and Report of the Fitness to Practise Committee:

10. On the 6th October, 2012, after a five day inquiry, the F.P.C. in its report found that allegations 1, 6 and 8 had been proven, as

to fact. The following is a summary of the findings with regard to those findings:

Allegation 1:

By majority the Committee was satisfied that this amounted to poor professional performance as:

“[t]he wrong diagnosis was recorded in circumstances where Prof. Corbally had a responsibility to

accurately document the problem and planned surgical procedure.”

A minority took the opposite view on the basis that the entry did not influence the booked hospital procedure.

Allegation 6:

The F.P.C. was satisfied that such amounted to poor professional performance as when delegating the procedure,

which it acknowledged Professor Corbally was entitled to do, he had a responsibility “…to issue the correct

instruction…”. It went on to state:

“The known weaknesses in surgical systems at the hospital, such as the absence of team briefings

before surgery commences and the absence from theatre (on occasion) of the doctor who has

consented the patient/patients, only serve to increase the responsibility on a senior surgeon to

communicate adequately when delegating a procedure to a junior”.

Allegation 8:

The F.P.C. found that this constituted poor professional performance noting that “…the surgical booking/coding

system was known to be incapable of coding a procedure such as division of upper lip frenulum”. In such

circumstances the F.T.C. assigned to Professor Corbally “…a particular responsibility to ensure that all necessary

precautions were taken…” so as to ensure that the patient received the correct surgery. It concluded by stating

that “[h]is failure to do so, by relying on systems known or suspected to be flawed, constitutes poor clinical

judgment”.

11. Of overall significance to the outcome of this case was the F.T.C.’s statement that it:

“…has heard significant evidence of systems failures, weaknesses and errors within the surgical process used at

OLHC. The Committee expresses real concern at these systems issues and recommend that the Medical Council

pursue them.

The system issues which cause concern include:

1. An inadequate surgical/coding system.

2. The lack of implementation of the hospitals’ own ‘Correct Site Surgery’ Policy.

3. Failure to effectively implement the surgical pause procedure.

4. Weaknesses in communication and leadership.”

Whilst evidence was given that the specific matters raised at the inquiry had been resolved, it was in the F.P.C.’s opinion unclear if a

comprehensive review of the coding system had, as of then, been completed.

12. On the 24th October, 2012, the report of the F.P.C. was considered by the Medical Council which was satisfied to adopt its

recommendation as to sanction and thereby issued an “admonishment or censure” with regard to Professor Corbally. He was so

notified in writing on the 28th October, 2012.

The High Court Judgment:

13. The learned President was of the view that the issues raised in the case called for the resolution of two questions, namely what

constituted “poor professional performance” and secondly, whether a single error, of the type in suit, could meet this requirement.

14. Being of the opinion that the essence of the definition of poor professional performance (s. 2 of the 2007 Act) focused on the “…

knowledge and skill or the application of knowledge and skill or both…” aspect of it, the judge noted the statutory obligation on the

Medical Council under s. 91 of the 2007 Act, which was to ensure the maintenance of professional competence, and thus, knowledge

and skill within the profession. The discharge of this responsibility was informed by the later provisions of that section, as well as by

rules made by the Medical Council under that title, contained in S.I. 741/2011. By a combination of the provisions of both of these

statutory instruments, there was, in his view, either an explicit or at least an implicit recognition that an evaluation of competence

was to be assessed overall by reference to some representative sample of a practitioner’s work. That being so, such assessment

should not be confined solely, to an isolated or single incident.

15. In the absence of Irish authority, reference was made to what was described as “similar legislation” in England and Wales upon

which the judgment in R. (Calhaem) v. General Medical Council [2007] E.W.H.C. 2606 (Admin) (“Calhaem”) is based. The term

“deficient” used in the English legislation was in effect the same as “poor” which is used in this jurisdiction. At para. 39 of his

judgment in Calhaem, Jackson J. made five points, the third and fourth of which were described by the High Court as being “the

appropriate principles for construing s. 2 of the 2007 Act”. In short, point 3, when dealing with the phrase “deficient professional

performance”, stated that save in exceptional circumstances, a breach of the term could only be demonstrated by reference “to a fair

sample of the doctor’s work”, with point 4 declaring that a single incident of “negligent treatment”, would be unlikely to constitute

such a deficiency unless it “was very serious indeed”.

16. Relying therefore on Calhaem in the construction of the term “poor professional performance” in s. 2 of the 2007 Act, and noting

the mandatory imposition of a sanction as well as the absence of an appeal, the trial judge was of the view that in respect of a single

lapse, the threshold of “seriousness” had to be met before a medical practitioner could be found guilty of breaching that standard.

O’Laoire v. Medical Council (unreported; High Court; Keane J.; 27th January, 1995) (“O’Laoire”) was applied. It is however, unclear

whether the same requirement should apply if the conduct comprised of more than an isolated incident, or where precisely in this

context, the “fair sample condition”, fits in.

17. On the other question raised, the trial judge was satisfied that an error correctly classified as “grave” or “very serious”, even if

singular in commission or omission, could constitute poor professional performance but short of that, a single lapse or error of a minor

nature should not normally be so considered.

18. The learned judge then quite appropriately applied this view of the law to the facts of the case before him and having regard to

the legal arguments as made, considered each of the allegations numbered 1, 6 and 8. He felt that the real problem behind the entire

episode was the systems deficit in the Hospital, not only in its coding process but also in the manner in which the error of the note

was not picked up, via the surgical pause, or by reference to other sources such as the consent form or the discussion between the

parents and the S.H.O./nurse on their child’s admission to the hospital. As there was no evidence of any causative link between the

error and the incorrect dissection, the lapse could not be described as grave.

19. On such basis the finding of poor professional performance and the sanction imposed on allegation 1 were unreasonable and

disproportionate, following Meadows v. the Minister for Justice, Equality and Law Reform [2010] 2 I.R. 701. It was however noted,

that the finding of fact was appropriate given the admissions as made, but it was the follow on adjudication which was flawed.

Regarding allegation 6, it was inappropriate to rest any responsibility on Professor Corbally’s shoulders for the inadequate performance

of the “pause or time out” requirement before surgery commenced. Moreover, the particulars of allegation 6 did not suggest that the

applicant was responsible for the hospital’s communication failure or that additional safeguards should have been applied by him in

view of the known weaknesses of the system. The finding so made and the sanction so imposed could not survive on fair procedure

grounds. Finally, allegation 8 was repetitious and would be quashed on that basis.

20. Although on notice, the Human Rights Commission did not participate in the proceedings in the High Court.

The Appellant’s Submissions:

21. The submissions advanced for appeal purposes, were in substance the same as those made in the High Court, but were suitably

adapted to reflect the decision and the findings of that court, and to focus on the remaining live issues on this appeal.

22. The Medical Council says that this is a simple case with the issue being, what is the correct statutory interpretation of the phrase

“poor professional performance”? There is, in its view, no justification for suggesting that an isolated event could not breach this

standard, or for imposing a threshold of “seriousness” even where the error was one of singularity, by act or omission, or of importing

into the meaning of that phrase any requirement of assessing a representative sample of a doctor’s work or knowledge (“the fair

sample requirement or test”).

23. It points out that under the Medical Practitioners Act of 1978 (“the 1978 Act”) the only ground upon which complaint could be

made, apart from unfitness to practise on mental or physical grounds, was an allegation of professional misconduct. It traced the

history of that phrase, up to and including O’Laoire, and what the accepted practice was from that decision until the enactment of

the 2007 Act. Under the preceding regime, it accepts that an act or omission, negligent in nature, would not always be, but would be

capable of, amounting to such professional misconduct.

24. In 2007 the Medical Council says that the legislature intended to introduce a new regime, which it did by expanding the base upon

which a complaint could rest against a medical practitioner. It did so via the concept of “poor professional performance” which relates

to conduct, involving either a single, or a series, of errors, which are less serious in nature than those which would give rise to a

finding of professional misconduct. The difference between both is therefore simply one of degree. It denies that the statutory

system in England is the same as that enacted in this jurisdiction and accordingly, describes the case law referred to as having

limited, if any, application. In particular, phrases mentioned in the English authorities such as “seriously deficient performance” and

“deficient performance” have all been used without any legislative definition, unlike the Irish concept of “poor professional

performance”. Furthermore, it points out that the approach taken in Krippendorf v. General Medical Council [2001] 1 W.L.R. 1054

(“Krippendorf”), had a very special context and was based on a booklet published by the General Medical Council (“G.M.C.”) which

issued guidance as to how a practitioner’s performance should be assessed. The approach of the Court is therefore entirely

unsurprising given the absence of any comparable definition in that relevant legislation. Likewise, the decision in Calhaem must be

understood in the context of this quite different regime.

25. The Medical Council also submits that if it is a correct proposition of law that only a “very serious or grave error” can constitute

“poor professional performance”, then there is in fact no difference between that phrase and professional misconduct. In effect, to so

conclude would be to disregard the significance of the amendment made in 2007.

26. It is further claimed that the reliance by the learned President on the provisions of Part 11 of the 2007 Act to inform the meaning

of the phrase in question was misplaced, as there is a very limited connection between that part of the Act and Parts 7 – 9 which

deal with complaints, investigations and sanctions (“the disciplinary provisions”). The only real interplay between both is that if, as a

result of operating the provisions of s. 91 of the 2007 Act, and if despite being afforded all reasonable opportunity, a medical

practitioner’s competence still falls below an acceptable standard, the Medical Council can make a complaint which when made feeds

into Parts 7 – 9 of the Act. Apart from and save for this connection, there is in reality quiet a distinct and definite separation

between the provisions of these respective parts of the Act.

27. Finally, on the individual facts of this case it submits that the findings of the F.P.C., and the imposition of the lowest available

sanction, could not be said, given the evidence, to be irrational, unreasonable or disproportionate. The absence of effect flowing from

the error or the fact that others or other causes, even including a systems failure, may also be at fault, do not absolve the admitted

mistake of the respondent from attracting consequences. All and every constitutional right of the respondent was preserved and

accordingly, save to a limited extent regarding allegation 8 only, the learned President of the High Court was incorrect in his

interpretation of the statutory phrase, and in his application of the other legal principles invoked.

The Respondent’s Reply:

28. The response of Professor Corbally is very much in keeping with the decision of the High Court. He is of the view that “poor

professional performance” must be defined by reference to the standards of competence which, in itself, is only capable of

assessment if an overall evaluation of one’s ability, power and performance is considered. He fully supports the judgment of Jackson J.

in Calhaem and argues for a threshold of “seriousness” in any allegation of poor professional performance. Furthermore, he says that

unless a single error can be considered as very grave indeed, it could not meet the necessary standard envisaged by this phrase.

29. The evidence tendered before the F.P.C. with regard to Professor Corbally’s qualifications, his knowledge, his diagnostic, surgical

and other skills, and the application of such to his practice, his commitment to patient care and his communication and understanding

ability of patients needs, all points to a single conclusion that his admitted error, as above described, could not be said to impinge

upon his overall competence in any way. Consequently, proceedings taken by him alleging, inter alia, that the findings being impugned

were irrational and disproportionate, were correctly upheld by the High Court and such applies in respect of all allegations.

Furthermore, he claims that he had no responsibility whatsoever for the system’s failures which undoubtedly were identified, and

accordingly, for the F.P.C. to build into its findings a responsibility on his part therefor, is also a breach of fair procedures. He thus

submits that the appeal in its entirety should be rejected.

Issues:

30. There are several issues in this case, but I propose to concentrate on the following:-

(1)Firstly, the definition of “poor professional performance”: that issue in turn gives rise to considerations such as:

• Is there a threshold of “seriousness” or other similarly described requirement, within the s. 2 definition,

• If so, what is the resulting relationship between professional misconduct and poor professional

performance: in essence, what is the difference between both?

(2) Secondly, in principle, should a distinction be drawn between a single incident of conduct or incidents greater in

number than one and, if so:

• What distinction should be made in the evaluation of such an incident and in the legal consequences

of its being established?

(3) Thirdly, does the fair sample test have a role to play under the provisions of the 2007 Act?

• If so, where and in what circumstances does it apply?

• In particular does it feed into the disciplinary provisions of the Act?

• If it does, is its application subject to what has been described as “exceptional circumstances”, and if

so, can this caveat be more narrowly described?

As it happens, despite the sequential layout as indicated, it has been more convenient to deal with the third point first, which

accordingly I have done.

Two Preliminary Observations:

31. Before addressing these issues, there are two matters which I wish to comment upon. The first relates to the allegations levelled

against Professor Corbally in both their number and manner of accusation, which is a matter of some concern to me. From the

evidence of the respondent it would appear that allegations 3, 4, 5 and 7 were withdrawn in advance of the hearing by the Chief

Executive Officer (“C.E.O.”) of the Medical Council who also withdrew, in respect of the remaining allegations, any suggestion that

even if established, the same could constitute professional misconduct. At para. 16 of the written submissions it was expressly

acknowledged that the expert evidence would not support such a finding. Allegation 2 was also later withdrawn.

32. Allegation 2 relates to the admission card, 3 to the consent form, 4 to the surgical pause out and 7 to an alleged failure to

adequately supervise the surgery of Patient X. On any sustainable view of the admitted/established facts, the most pertinent of

which gave rise to little or no controversy, it is very difficult indeed to see how the respondent could have been so charged with

having any level of responsibility in relation to these matters.

33. As appears from the wording of allegation 2, the description given by Professor Corbally to have the patient booked in, was

accurate, in that it referenced the “Upper Frenulum”. The consent form had been obtained by an S.H.O. with no direct involvement of

the respondent. In any event, the description of the intended procedure was accurately recorded by that doctor. How Professor

Corbally could have ensured the surgical pause, at a time when he was not present and was not a direct participating member of the

surgical team, is terribly difficult to understand as is the allegation that the surgery was inadequately supervised. He was not, quite

evidently, present when the first dissection took place, and to my knowledge no one has ever suggested that the correct procedure,

when performed, was not appropriately carried out. In such circumstances, I fail to see any possible justification for suggesting any

level of responsibility for such matters.

34. The second aspect of this point involves the manner in which such charges were phrased and alleged, that is as constituting both

poor professional performance and professional misconduct. On its own submission, the Medical Council agrees that the facts of the

case could never have met the standard of professional misconduct, and neither could they have met the standard of poor

professional performance if a “seriousness” threshold, should be imputed to that phrase. I wonder why therefore, was he so charged

in this way? Quite clearly it is a very significant matter for a member of any profession to have allegations made against him which

form the subject matter of disciplinary proceedings. The more serious the allegations obviously, the more concern there will be.

Professional misconduct has the highest possible status with the gravest of consequences. Such process is not and should not be

equated with a criminal prosecution whereby it is not infrequent to charge an accused with a lesser offence in addition to the more

serious one, where the facts might justify a conviction under either. It is also quite distinct from inter partes litigation. Whilst I fully

understand the role of the Medical Council, it seems to me that in its justifiable pursuit of protecting the public, sight must not be lost

of the significant stress and anxiety as well as potential consequences which a disciplinary process inherently has for the practitioner

in question. By all means, if the circumstances, as known at the time and if capable of being established by available evidence, would

justify the most serious of charges, then so be it. But where that is not the case, I deprecate any practice or approach which

unnecessarily and unjustifiably increases that concern or anxiety.

35. The second observation is this: after the detail of the case is absorbed, the legislative provisions considered and the case law

scrutinised, if one should withdraw a little from such matters and step for a moment outside the immediate confines of the litigation

arena, one may ask how could a case like this, ever, have travelled the distance it has. Confining myself purely to the disclosed facts

of the instant case and disregarding, as every player must, any previous background - whilst noting the admitted absence of all

effect, the multiple intervening opportunities of detecting the respondent’s error and the institutionalised systems failures at the

Hospital- I cannot help but feel that this is not truly the case to have such important issues determined. Simply put, the

circumstances do not lend the mistake to such a course.

36. In so expressing these remarks, I am not in the least underestimating the importance of accurate transcription: such is a vital

part of a doctor’s responsibility and critical for patient welfare: I therefore fully support the views of the learned President of the High

Court in this regard.

General Importance of the Case:

37. This case has ramifications well beyond Professor Corbally, and even the medical profession itself. In recent years several other

professional persons have seen their statutory regulatory regime altered by the inclusion of an additional ground of complaint namely,

poor professional performance. There are some variations within the different provisions, but all of those which I am about to mention,

have now included this ground in addition to retaining the historical ground of professional misconduct:-

(1) Health and Social Care Professionals Act 2005 (s. 52):

• Professions include Clinical Biochemist, Dietician, Medical Scientist, Occupational Therapist and

Physiotherapist, Psychologist, Radiographer, Social Care Worker.

• No definition of poor professional performance.

(2) Pharmacy Act 2007 (s. 35):

• No definition of poor professional performance.

(3) Building Control Act 2007 (s. 57):

• Registered professional.

• Definition of both professional misconduct and poor professional performance.

(4) Nurses and Midwives Act 2011 (s. 55):

• Registered Nurse or Registered Midwife.

• Definition of poor professional performance in terms identical to the 2007 Act.

There are undoubtedly several other professions also regulated, but those which I have nominated are purely intended as

representative, so as to indicate the potential effect of any judgment of this Court on similar or comparable provisions contained

otherwise than in the 2007 Act.

38. A further aspect of these legislative schemes might profitably be noted at this point which is, that in some situations there is a

duty on the regulatory body to maintain professional standards and to that end, establish and operate professional schemes etc. In

others, there is no such duty. The importance of this point will become clear when further reference is made to the justification or

otherwise of evaluating poor professional performance by reference to the fair sample requirement.

The Historical Position:

39. It is correct in one respect to suggest that the central issue of law in this case is one of statutory interpretation, that being of

the phrase “poor professional performance” as defined in s. 2 of the 2007 Act. However, the investigation of that issue calls for a

consideration of what the historical position was, what influence case law had on such position, the modern development of

professional regulation, the diversity of the roles of the statutory bodies established to oversee and implement such regulations and

how far, in this particular case, should the domestic provisions of the 2007 Act be influenced by the jurisprudence of our neighbours,

England and Wales.

40. It would appear that from at least the Medical Act 1886 onwards, medical practitioners had been subject to some form of

regulation. Under s. 29 of that Act the General Council of Medical Education and Registration had power to erase the name of a

medical practitioner from the Register if he was found to have been guilty of “infamous conduct in a professional respect”.

41. In 1894 (Allinson v. General Council of Medical Education and Registration [1894] 1 Q.B. 750), such conduct was described as

“disgraceful or dishonourable” as so regarded by colleagues of good repute and competence. Its relationship with the profession was

essential so that conduct which for outsiders would not be so described, could be so described for the practitioner. Accordingly, the

original phrase was expanded and became termed infamous or disgraceful conduct in a professional respect. Throughout the years

that phrase was described in different ways and its then level of experience and understanding was captured in the judgment of Lord

Jenkins in Felix v. General Dental Council [1960] A.C. 704. In general terms, it was said that such conduct involved conscious

wrongdoing or shameful activity, of a type deserving of infamy or utter reprobation. These descriptions of “infamous” and “disgraceful”

can be condensed to suggest that such conduct had to involve some element of moral turpitude, fraud or dishonesty. Carelessness,

inadvertence or a mistaken belief honestly held, were never so regarded.

42. As time went on this dated way of expressing the type of conduct intended to be captured was replaced with the phrase

“professional misconduct”. Section 45 of the Medical Practitioners Act 1978, used the phrase “professional misconduct” as one of two

grounds upon which a complaint could be made against the practitioner. The other, not relevant, was an allegation of unfitness by

reason of physical or mental disability. That Act did not define or otherwise describe the phrase in question. Keane J. was called upon

to do so in O’Laoire. That decision remains the most important one on this topic to date.

43. Some years prior to O’Laoire the Privy Council offered an opinion on what constituted “serious professional misconduct” in respect

of a dental professor in Doughty v. General Dental Council [1988] A.C. 164 (“Doughty”). In England the former historical expression

was replaced in the Medical Act 1983 (“the 1983 Act”), by the expression “serious professional misconduct”. Whilst stating that

“infamous or disgraceful conduct in a professional sense”, would continue to constitute professional misconduct, the Privy Council felt

that in light of a lesser sanction which the 1983 Act also provided for, it would no longer be appropriate to require the G.M.C. to

establish on all occasions conduct to the former level. So, it expressed the view that conduct which seriously fell short of the

standards of conduct expected of a dentist, would also constitute professional misconduct.

44. In O’Laoire, having referred to much of the background and its evolution throughout the years, Keane J. set out five principles to

establish and thereafter so verify the meaning of “professional misconduct” for the purpose of s. 45 of the 1978 Act (pp. 106-107).

45. Numbers 1, 2 and 3 were to the effect that infamous or disgraceful conduct, touching upon one’s profession, involving some

degree of moral turpitude, fraud or dishonesty and, if established, constituted professional misconduct (“the moral turpitude test”).

Principle No. 4 excluded from that description a situation where a person wrongly but honestly formed a particular opinion. It was the

last principle which reflected the second limb of what thereafter became professional misconduct. It reads:-

“(5)Conduct which could not properly be characterised as ‘infamous’ or ‘disgraceful’ and which does not involve any

degree of moral turpitude, fraud or dishonesty may still constitute “professional misconduct” if it is conduct

connected with his profession in which the medical practitioner concerned has seriously fallen short, by omission or

commission, of the standards of conduct expected among medical practitioners.”

The fact that the word “serious” was not used in s. 45 to qualify the phrase “professional misconduct” was not relevant as, in the

view of Keane J., only conduct which “has seriously fallen short” of acceptable standards could be so described. The principle so

enunciated remains directly pertinent to the meaning of professional misconduct and no one has made any suggestion to the

contrary.

46. There is one further aspect of this judgment which is not frequently referred to: it is the reference to s. 69 of the 1978 Act which

assigned to the Medical Council as one of its functions, the requirement to give guidance to the medical profession generally, and on

all matters relating to ethical conduct and behaviour. At that stage the 3rd edition of the Guide had been issued (Guide to Ethical

Conduct and Behaviour and to Fitness to Practice (1989; 3rd ed.) (“the Guide”)) . It defined “professional misconduct” as “conduct

which doctors of experience, competence and of good repute, consider disgraceful or dishonourable”. By reference to that section of

the Guide, the learned judge said that:-

“The principle at (5) above should be seen as modified in light of that statement.” (p. 108)

47. What in fact that qualification means or what impact on judicial definition any such Guidelines may have, is not directly relevant

to this case as in the current edition (Guide to Professional Conduct and Ethics for Registered Medical Practitioners (7th ed.; 2009))

“professional misconduct” is described along the standard lines of including both the “moral turpitude test” and the “expected

standards test” (para. 2.1 of the Guide) with the statutory definition of “poor professional performance” being effectively repeated

verbatim in para. 2.2 of the Guide. I very much leave open for further consideration precisely what that qualification might mean in

the event of the Medical Council taking a different view from that of the Court, which I strongly doubt it could, or expressing the

terms in a different way. If the legislature intended that the regulatory body, by its code or guidelines, should have such a power, it

could have made specific provisions to that effect, as it did, when including a breach of the code of conduct in the definition of

“professional misconduct” as set out in s. 33 of the Pharmacy Act 2007.

48. It is only correct to point out that Kelly J., in Prenderville v. The Medical Council & Ors [2008] 3 I.R. 122, made a number of

references to the qualification contained in O’Laoire. Leaving those aside however, I find much to commend itself in what the learned

judge said at para. 172 of the report where, whilst accepting that the Guide is no more than simply that, he stated:-

“It is not too much to expect that a doctor on consulting the Guide would at least be appraised in general terms of

what the Council understands professional misconduct to mean. Of course one is not entitled to look for absolute

precision in a guide…It would be unreasonable to expect the Council to publish a catalogue of the forms of

professional misconduct which may lead to disciplinary action. But if a new test is to be applied or a new species of

conduct is to be regarded as amounting to professional misconduct, then one would expect the Council to notify its

members of that.”

The same remarks quite evidently would apply to “poor professional performance”. In making this statement I am not to be taken as

criticising the Medical Council, or as underestimating the difficulties, including those legal, which such a step might involve.

Nonetheless, nonetheless given the diversity of its responsibilities under the 2007 Act, it would indeed be helpful to the profession

overall and welcomed by its members, if from time to time the Medical Council’s practical understanding of these terms, and the

manner in which it would propose to apply them, should be published in that Guide.

The 2007 Act:

49. Before considering the central issue, it is important to look at the structure of the 2007 Act. The Act itself is divided into 13

parts:-

• Part 2:- continues in being the Medical Council and sets out its objects and functions,

• Part 4:- deals with members, committees and staff of the Medical Council,

• Part 6:- covers the registration of medical practitioners,

• Parts 7, 8 and 9:- deal with complaints regarding medical practitioners, the investigation of such complaints, the

imposition of sanctions, if such is established, and access to the High Court by way of cancellation or confirmation,

as the case may be,

• Part 10:- deals with education and training,

• Part 11:- deals with maintenance of professional competence.

50. As can therefore be seen the Medical Council has several important roles to play with the more major ones being dealt with in

separate Parts of the 2007 Act. In essence, it is the custodian of the register, it has responsibility for ongoing education, it must

specify a standard of professional competence and must maintain that standard, and it has overall responsibility, subject to court

application or review, regarding disciplinary matters. To assist with these functions it has the benefit of certain permanent

committees established by the Act, including the P.P.C. and the F.P.C. and it has the power to establish such other Committees as

may be required.

51. The powers and responsibilities given, which must be performed in the public interest (s. 7(1)(b) of the Act), are designed to

further the single stated object of the Medical Council, which is “to protect the public by promoting and better ensuring high

standards of professional conduct and professional education, training and competence amongst registered medical practitioners” (s.

6).

52. As with the 1978 Act, there is no definition of professional misconduct but “poor professional performance” is defined 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;” (s. 2).

53. Any person, or the Medical Council, may make a complaint on one or more of seven grounds, including professional misconduct and

poor professional performance (s. 57 of the 2007 Act). This is firstly dealt with by the P.P.C., which if it decides that there is a prima

facie case to warrant further action, shall refer the complaint to the F.P.C. (s. 63). The C.E.O. of the Medical Council then notifies

the subject doctor of the nature of the complaint and furnishes particulars of the evidence to support it, of the referral to the F.P.C.

and of the intention to hold an investigation into it (s. 66). Following the investigation, the F.P.C. must submit a report to the Medical

Council, to include within it, its view as to whether any of the allegations have been proven: it may also include any other relevant

matter which it thinks appropriate to do so (s. 69(2)). On receiving the report the Medical Council, if any of the allegations have been

proven, must decide on the appropriate sanction (s. 70). The sanctions available are contained in Part 9 of the Act. Subject to

exceptions not relevant, the Medical Council may impose any of the following:-

“(a) an advice or admonishment, or a censure, in writing;

(b) a censure in writing and a fine not exceeding €5,000;

(c) the attachment of conditions to the practitioner’s registration, including restrictions on the practice of medicine

that may engaged in by the practitioner;

(d) the transfer of the practitioner’s registration to another division of the Register;

(e) the suspension of the practitioner’s registration for a specified period;

(f) the cancellation of the practitioner’s registration;

(g) a prohibition from applying for a specified period for the restoration of the practitioner’s registration.” (s. 71)

54. Where any of the sanctions above mentioned, save that specified at subpara. (a), is imposed, the same shall not take effect

unless confirmed by the Court (s. 74). In this respect, the practitioner in question has a right to appeal to the High Court from the

decisions so made and on such application that Court can consider the evidence adduced and the arguments made before the F.P.C.,

and also any further or other evidence or argument, as it considers appropriate. Having done so, the Court may confirm the decision,

may cancel the decision and replace it with what it considers to be a more appropriate one or give to the Medical Council such

directions as it considers fit (s. 75). Where the subject doctor does not move such an appeal, the Medical Council must nevertheless

make an application to the Court for confirmation of the decision.

55. As is clear from the object of its establishment and the functions required of it, the Medical Council has the duty of establishing

and maintaining the register and to do so in the public interest. An essential part of this responsibility is to set standards of

competence and to maintain such standards throughout the medical profession. As the practice of medicine is so diversified, what will

be required to establish standards in one discipline may greatly differ from what may be necessary in another discipline. What may be

appropriate for a general practitioner may not be for an S.H.O.: again, what may be appropriate for a cardiologist may not be for a

cardiac surgeon etc. Consequently, to ensure that the specified standards across all disciplines should not drop, the Medical Council is

empowered to establish and operate one or more schemes for this purpose. It must periodically review, and if necessary take steps to

improve the operation of such schemes. It can recognise medical training bodies and engage with them to that end. All of this is

provided for in s. 91 of Part 11 of the 2007 Act.

56. To compliment this duty so that in an overall sense the public can be best served, every registered practitioner himself or herself,

is obliged to maintain standards on a continuing basis and to do so pursuant to a professional competence scheme, which is both

appropriate and applicable to him or her (s. 94(1)). From time to time, quite evidently, some practitioners may not keep abreast of

what is required of them under the scheme, or as part of resolving a complaint may be required by the F.P.C. to attend a particular

scheme and fail to do so, or fail adequately to do so. In either situation there may well exist a concern about competence, in respect

of which an opportunity for improvement has been afforded, but for whatever reason such competence to the required level has not

been re-established. Accordingly, if and when these circumstances occur, the Medical Council is given a right to make a complaint (s.

91(6) of the Act).

57. A similar situation can arise where a doctor is registered in a specialist division or in a trainee specialist division. Where concerns

arise in respect of such practitioner, the Medical Council will give that person “…every reasonable opportunity” to improve his

performance, but where on review it continues to be at an unacceptable level then once again the Medical Council may make a

complaint (s. 91 of the Act). Accordingly, for those, whether standing within or outside a specialist division, in respect of whom an

issue of competence arises and is dealt with under Part 11 of the Act, it is explicitly provided for that, save in exceptional

circumstances not relevant, a complaint will be made only after the practitioner has failed to take the opportunity afforded to him to

regain the required standard.

58. The Medical Council has been given power to make regulations for the purposes of Part 11, which it has, and which are contained

in the Medical Council – Rules for the Maintenance of Professional Competence (No.2), S.I. 741/2011. Under rule 2, provision is made

for the assessment of a practitioner’s knowledge and skill by the Professional Competence Committee (“P.C.C.”) of the Medical

Council, which assessment is conducted by reference to several listed activities, including interview with the doctor in question, any

relevant third party, inspection of his work place, review of his clinical records, direct observation of his practice of medicine etc.

Having conducted such a review, the P.C.C. has the power to initiate or confirm an action plan designed to improve the knowledge

and skill or the application of the knowledge or skill of that practitioner. Such will be monitored over a period of time to determine

whether or not the action plan is being implemented. In the event of that being unsuccessful and the required standard not being

regained, the Medical Council, on this, and on other grounds, may make a complaint under the complaints provision of the Act.

59. I have gone to some considerable length on this aspect of the case as the duty placed on the Medical Council under these

provisions of the Act, have been relied upon as justifying the fair sample test. I regret but I cannot agree that this is so.

60. As can be seen, the entire thrust and focus of Part 11 is to regulate competence on an ongoing and continuous basis. It does so

through the P.C.C., and not through either the P.P.C. or the F.P.C. It is a support mechanism for practitioners who for whatever

reason may have temporarily fallen below the required standard, but who are capable of regaining that status with appropriate help. It

is, I believe, essentially rehabilitative in purpose and is not designed as an investigative tool for identifying or detecting conduct or

activity with a view to engaging with the disciplinary provisions of the Act. The relationship between this Part and Parts 7 and 9 of

the Act, intersect only when complaint is made by the Medical Council having regard to a failed opportunity/opportunities of meeting

the necessary standards. Any connection in a disciplinary sense, with Parts 7 to 9 of the Act, is therefore in my view, purely

incidental.

61. Accordingly, I do not believe that it is appropriate to draw upon the provisions of Part 11 of the 2007 Act as a sustainable basis

for suggesting that, save in exceptional circumstances or where an isolated complaint is a grave one, a fair sample assessment of

work or practice is a preliminary requirement to the making of a complaint against a practitioner. I do not believe that such a

deduction is appropriate from the relevant provisions outlined or that it is otherwise required for the operation of the disciplinary

process. In fact, on the contrary, it would seriously jeopardise the mandatory obligation on the Medical Council to protect the public

from sub-standard competence or the performance thereof by those subject to its remit.

62. There is a further reason for this view which is this: some of the other statutory schemes where “poor professional performance”

is included as a ground of complaint (para. 37 supra), do not have any provisions comparable to those in Part 11 of the 2007 Act.

Accordingly, if the basis for interpreting the term, relied or relied heavily on the obligation to maintain competence, it might be

suggested that within those statutory schemes the phrase might have a different meaning which surely is not the case. Accordingly, I

believe that the conclusion reached is justified.

UK Legislative Position and Applicable Case Law:

63. The other major source of reliance for the “fair sample” test is the judgment of Jackson J. in Calhaem and the other authorities

which he relies upon. For the reasons which I am about to set out, I am deeply suspicious of referring to the situation in England in

the sense of adopting it as the correct basis or appropriate source for determining whether the meaning of “poor professional

performance”, in s. 2 of the 2007 Act, can only be ascertained by reference to a fair assessment of the practitioners overall work,

even if some exception is carved out of such requirement. My reasons for this view are as follows.

64. Under s. 36 of the 1983 Act, the G.M.C. could erase or restrict a doctor’s registration only in cases of “serious professional

misconduct”, or where a criminal conviction had been recorded: the third basis upon which complaint could be made related to a

serious impairment of fitness to practise for health reasons, which was dealt with by the Health Committee (s. 37 of the Act). No

other grounds of complaint were available and neither was any sanction lesser than those mentioned. Such matters were within the

remit of the Professional Conduct Committee of the G.M.C.

65. Section 1 of the Medical (Professional Performance) Act 1995 (“the 1995 Act”), inserted a new s. 36A into the 1983 Act, which

permitted a doctor’s registration to be suspended for not more than 12 months or to have conditions attached to it for not more than

3 years: this applied if his or her standard of “professional performance” had been found to have been seriously deficient.

Responsibility for and control of these matters were vested in two new Committees specifically established under the Act for this

purpose: these were the Committee on Professional Performance (“C.P.P.”) and the Assessment Referral Committee. Section 40 of the

1983 Act conferred a right of appeal from a decision of the C.P.P. to the Privy Council, but unlike an appeal from a decision of the

Professional Conduct Committee, was confined to a question of law. However, such a question is to be interpreted generously so as

to avoid an injustice (Stefan v. General Medical Council [2002] U.K.P.C. 10 and Sadler v. General Medical Council [2003] 1 W.L.R.

2259 (“Sadler”) (para. 11)).

66. As Krippendorf explains, two important observations require noting at this point: first the statutory test set out in the amendment

was that of “professional performance” by reference to past work and not “professional competence” (p. 1056): secondly, neither the

Act as amended or otherwise, nor the rules made thereunder, defined “seriously deficient performance” (p. 1056): (General Medical

Council (Professional Performance) Rules Order of Council 1997) (S.I. 1997/1529) (“The English Rules”).

67. In a booklet published in November, 1997 the G.M.C. indicated what interpretation it placed on this phrase. In short, the Medical

Council viewed the term “seriously deficient professional performance” as referring to conduct, sufficiently serious to call into question

a doctor’s registration: it instanced that this might arise if one “repeatedly or persistently” fell below the required professional

standard. The Privy Council in Krippendorf saw “no reason to criticise the general guidance thus given in the booklet, provided that it

is not regarded as exhaustive” (p. 1057). When the facts in Krippendorf are looked at, and when the process involved is considered,

it was perfectly in keeping with the statutory provisions and the attendant Council rules for such process, for the Privy Council to

have applied the description as given.

68. In short, a complaint was made that Dr. Krippendorf had used the incorrect injection technique when administering the BCG

vaccine to over 200 children, giving rise to a high incidence of side effects. On receipt of the complaint, it was looked at by a

“medical screener” who took the view that an assessment was required. The doctor so agreed, thus obviating the necessity for the

Assessment Referral Committee to make such decision. An assessment panel was therefore constituted to conduct a review, which it

did in two phases. A great deal of documentation was generated for this exercise, including the doctor’s response to what was in

effect an 85 page questionnaire. Phase 1 included an examination of 40 medical records relating to the doctor’s work. Phase 2 was

conducted at a clinical skills laboratory where she had an opportunity to complete objective tests in what was said to have been “her

paediatric practice”. Between the carrying out of Phase 1 and Phase 2, the matter was referred to the C.P.P. At the conclusion of the

process, the panel produced an assessment report which the C.P.P. accepted, at a subsequent hearing held by it. Based primarily on

the findings of the report, the C.P.P. determined that the practitioner’s professional performance had been seriously deficient and

suspended her registration for 12 months. All of the steps as described in this process were governed by detailed rules made under

the primary legislation: in total these numbered 34, with 3 schedules.

69. Omitting non-essential detail, the Privy Council, whilst describing the report as long and careful, found that the approach of the

panel in conducting the assessment had been carried out on a seriously erroneous basis which had followed into its report. Essentially,

the panel had failed to apply the statutory test of “professional performance”, which should have involved an assessment of the

doctor’s track record, in work actually completed by her: but rather it had dealt with her professional competence, this by testing her

knowledge and clinical skills. That was an incorrect approach which in their lordships’ opinion demonstrated a “basic error of law” in

the discharge of the panel’s statutory function (p. 1063). Accordingly, for this and several other reasons, based on circumstances

which I have not set out, the appeal was allowed, with the determination of the C.P.P. being quashed.

70. Quite evidently it was always intended to evaluate the work of Dr. Krippendorf by and via this assessment process, which in so

doing was conducted procedurally, that is step by step, in accordance with the English rules.

71. The case most relied upon is Calhaem, which was decided pursuant to an amendment made by way of substitution to both the

1983 and 1995 Acts. From 2003 onwards the only allegation which could be made against a registered practitioner was that “his

fitness to practise was impaired”. Under s. 35C(2) of the 1983 Act, inserted by the Medical Act 1983(Amendment) Order 2002 (S.I.

2002/3135), a person’s fitness to practise “shall be regarded as “impaired” for the purposes of this Act by reason only of –

“(a) misconduct;

(b) deficient professional performance;

(c) …

(d) …

(e) …”

72. Although the wording of these provisions differ from the language used in the original sections 36 (1983 Act) and 36A (1995 Act),

the Court was satisfied, and it has not been doubted since, that both the word “misconduct” and the phrase “deficient professional

performance” should be understood as having the same meaning as their respective predecessors had, namely serious professional

misconduct and seriously deficient professional performance. So the word “serious” was infused into both. Further, the court pointed

out in Calhaem that the word “misconduct” in section 35C(2)(a) of the Act “does not mean any breach of duty owed by a doctor to

his patient; it connotes a serious breach which indicates that the doctor’s fitness to practise is impaired”, and that the phrase

“deficient professional practise” “does not mean any instance of sub-standard work; it connotes a level of professional performance

with indicates that the doctor’s fitness to practise is impaired”

(Jackson J., para. 26). Accordingly, the test of “impairment” became the essential threshold which had to be met in this disciplinary

process.

73. In order to reflect the new regime overall, which included revised rules (The General Medical Council (Fitness to Practise) Rules

Order of Council 2004 (S.I. 204/2608)) and, in particular so as to accommodate the “impairment requirement”, the proceedings before

the Fitness to Practise Panel thereafter fell into three parts. First, the findings of fact, secondly, the panel’s determination as to

whether the practitioner’s fitness to practise was impaired and if that was established, thirdly, the question of sanction. At each

stage of the process the parties were entitled to call evidence and make submissions relevant to the issues under consideration

(Calhaem, para. 25).

74. Dr. Calhaem had several allegations made against him arising out of a particular operation and his involvement with the patient in

its immediate aftermath. He admitted several breaches of duty with the panel describing his actions in other contested areas as being

irresponsible and as constituting a serious departure from good clinical care and practise. Indeed, the professional expert called on his

behalf agreed that there were many significant failures but argued that these were not of sufficient gravity as to call into question his

resignation. After announcing its findings, submissions were then received on the issue of practise impairment. The panel held that his

fitness was so impaired and suspended him for three months. His appeal therefrom was heard before the Administrative Court which

for appeal purposes, had by then replaced the Privy Council in this regard.

75. Jackson J., before setting out five principles at para. 39 of the judgment, which have been referred to in the instant case,

reviewed a number of recent cases most of which involved allegations of serious professional misconduct, and therefore require no

referencing in this judgment, save perhaps with the possible exception of Sadler. That was a case decided under the 1995

amendment with the investigation of the complaint, just as in Krippendorf , involving a detailed evaluation of the doctor’s work as

provided for by the English Rules. That assessment covered the surgeon’s practice over a long period which included several

operations, a number of which were found to have been carried out unsatisfactorily. The Privy Council picked up on the reference in

the G.M.C.’s booklet to “repeated and persistent” substandard conduct and pointed out that one should keep in mind the generality of

what the booklet was intended to cover when applying this phrase. It instanced how the professional demands made of practitioners,

differed greatly and that self evidently very different evidence would be required when assessing shortcomings of technique in major

surgery as compared with assessing a continuing failure by a G.P. to maintain, for example, an efficient practice.

76. At para. 62 of the judgment it was stated:-

“It would plainly be contrary to the public interest if a sub-standard surgeon could not be dealt with by the CPP

unless and until he had repeatedly made the same error in the course of similar operations. But as a general rule the

GMC should not…seek to aggregate a number of totally dissimilar incidents and alleged shortcomings in order to

make out a case of seriously deficient performance against any practitioner.”

77. Lord Walker went on to say that deficient performance was a much wider concept than that of negligence, which involved

compensating loss and that proof of causation was not necessary to satisfy the meaning of the term. At para. 63 of the report, his

Lordship continued:-

“On the other hand one isolated error of judgment by a surgeon might give rise to liability in negligence but would be

unlikely, unless very serious indeed, to amount by itself to seriously deficient performance.” (p. 2279)

78. At para. 39 of Calhaem, Jackson J. then sets out five principles as follows:-

“(1)Mere negligence does not constitute “misconduct” within the meaning of s. 35C(2)(a) of the Medical Act 1983.

Nevertheless, and depending upon the circumstances, negligent acts or omissions which are particularly serious may

amount to “misconduct”

(2) A single negligent act or omission is less likely to cross the threshold of “misconduct” than multiple acts or

omissions. Nevertheless, and depending upon the circumstances, a single act or omission, if particularly grave, could

be characterised as “misconduct”.

(3) “Deficient professional performance” within the meaning of 35C(2)(b) is conceptually both separate from

negligence and from misconduct. It connotes a standard of professional performance which is unacceptably low and

which (save in exceptional circumstances) has been demonstrated by reference to a fair sample of the doctor’s

work.

(4) A single instance of negligent treatment, unless very serious indeed, would be unlikely to constitute “deficient

professional performance”.

(5) It is neither necessary nor appropriate to extend the interpretation of “deficient professional performance” in

order to encompass matters which constitute “misconduct”.”

79. In considering whether all or some of the these principles are applicable in this jurisdiction it is essential to point out that the

legislative regime in England is at least in some material respects significantly different from that as enacted by the 2007 Act. There

are, of course, also similarities, but the differences cannot be discounted.

80. The following are the most material ones:

(a) As Krippendorf makes clear, the test of what constitutes “deficient professional performance” is “performance

related”, judged by reference to work or practice which the practitioner in question has already completed. It is not

a test of competence. Whilst I accept that there is some co-relation between both and that a rigid definitive

distinction may not be justified, nonetheless there is a definite and discernible difference between a performance

and a competence test.

(b) The phrase “deficient professional performance” has not been statutorily defined in England, whereas the

corresponding phrase has been in s. 2 of the 2007 Act. This means that the prominence which a booklet like that of

the G.M.C. has in that jurisdiction would not, in respect of the Guidelines of the Medical Council, have the

corresponding effect in this jurisdiction.

(c) It is not sufficient in that jurisdiction to simply establish that the practitioner has been guilty of misconduct or

of deficient professional performance: unless it is shown that such impairs his fitness to practise, no sanction can

be imposed. This additional requirement of the English test is not applicable in this jurisdiction. Therefore findings

can be made under the 2007 Act even where the conduct complained of, does not reasonably call into question a

doctor’s resignation.

(d) The rules made to facilitate the operation of s. 35 of the 1983 Act (as substituted), are particularly detailed

regarding evaluation. Lord Walker summarises these in Sadler (para. 4 – 11 inclusive). These include an initial

screening, the carrying out of an assessment unless no further action is required: with such involving interviewing

the complainant, witnesses, the practitioner and up to five persons nominated by him: on completion the report

must offer a view as to whether the standard of the practitioner’s performance has been seriously deficient and also

whether such performance could be improved by remedial action. On its finalisation, several options are open

including the immediate referral to the C.P.P. or the drawing up of a “Statement of Requirements”, which if the

practitioner agrees to and complies with, the matter may go no further. If he disagrees or if the requirements have

not been satisfied, there are several other options available; whereas,

(e) The rules under the 2007 Act are not remotely as detailed.

81. It therefore appears to me that in setting out what is described as Principle No. 3, Jackson J. was in effect doing no more than

essentially applying the statutory framework as it exists in that country as well as incorporating, what Sadler, by way of obiter,

seems to have suggested in the context of a single or isolated act. In view of the 2007 Act and the regulations made thereunder, I

strongly doubt whether any reliance can be placed on Point No. 3, at least without it being more fully explained and properly

contextualised.

82. In conclusion, very little assistance in my view can be derived from the English legislative position or from the case law created

thereby.

The Meaning of “Poor Professional Performance”:

83. Although referred to earlier in this judgment it is worth repeating the essence of the definition contained in s. 2 of the 2007 Act

which reads:

“‘Poor professional performance’, in relation to a medical practitioner, means 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”.

Thus, although headed “performance”, the test is clearly not only one of competence but of competence, as duly defined.

84. It is well accepted that the essential task of a court in the construction of any statutory provision is to ascertain therefrom the

true intention of the Oireachtas. To this end, it is not confined to any particular provision but may consult other provisions and even

the Act as a whole, if necessary. Reference to repealed enactments which can be considered in paria materia is also permitted as is

any relevant case law on the provisions in question.

85. Even though much debate was had on the general meaning of the phrase “poor professional performance” it is not necessary for

the purposes of dealing with this appeal to dwell fully on each aspect of the definition as, if the threshold of “seriousness” is part of

the test, it is accepted by the appellant that the findings of the F.P.C. and the admonishment which followed, proceeded on an

erroneous basis of law and consequently, must be set aside. Since I have arrived at such conclusion, it is not therefore essential to

explore the full implications of this term. However, could I make some brief observations.

86. It is not altogether clear what was intended by the amendment and of more significance what the amendment, as enacted,

actually means. It is said by the appellant that even with the establishment of the less demanding test in 1978, there remained

conduct which could not be said to equate with either the “moral turpitude test” or the “expected standards test”, and yet was such,

that in view of its significance, ought to be capable of regulatory control. Hence, the creation of this concept of “poor professional

performance” in the 2007 Act.

87. I can readily understand the logic of incorporating within the process, conduct, which although not insignificant, falls below either

of the standards as mentioned. Indeed, to make provision therefor may be entirely justified or even desirable but of course such, in

the first instance, is a matter for the Oireachtas. Inherent in this suggestion is an acceptance that the difference between the

intended conduct and conduct which would constitute professional misconduct is simply a question of degree: the former being

somewhat akin to a summary matter to be dealt with by a summary process. In my view however, if this was what was intended,

neither the provisions nor the structure of the 2007 Act itself, implemented same.

88. There is a further view as to the kind of activity which the amendment was to address. It is that the Oireachtas intended to refer

to conduct of a type or quality, quite separate and distinct from that, which might constitute professional misconduct: in other words

conduct qualitatively different, and not simply that which could be measured in terms of seriousness, by comparison with professional

misconduct. Again however, if that was the ambition, the provisions of the Act likewise in my view, failed to reflect it.

89. Having referred to many of the standard cases dealing with statutory interpretation, the Medical Council submits that on a literal

interpretation, which is appropriate, there is no room for importing into the definition any threshold or qualification whatsoever.

Accordingly if correct, this submission has the logical effect of meaning that any deviation from acceptable standards, would

constitute poor professional performance and thereby expose the practitioner to the full range of sanctions contained in s. 71 of the

Act.

90. Prior to 1978, the only sanction available on a finding of professional misconduct was erasure: s. 45 of the Act added the

possibility of suspension for a definite period or conditional registration. Evidently, erasure had the consequence of prohibiting the

doctor from practising medicine, subject presumably to an application to reinstate, whereas the first of the lesser sanctions was

definite in duration with the second demanding no break in the practise of medicine. In view of the lesser sanctions so provided for, it

was logical to add the second tier at the time (Doughty at p. 173). Following therefore the enactment of s. 45 of the 1978 Act, and

in light of the decision in O’Laoire, there existed immediately prior to 2007 what can be classified in general terms as effectively two

tiers of seriousness, both of which constitute professional misconduct. The higher and more demanding standard has been described

as the “moral turpitude test” with the lower threshold being described as the “expected standards test”. The type of conduct which

falls into each category is clearly different.

91. Even with such relaxation however, quite clearly a finding of professional misconduct, added to in light of the sanction imposed,

was quite a grave matter for a practitioner. Professional reputation lay in tatters, personal reputation quickly followed, with the

deprivation of one’s career having devastating consequences for person, family, social and societal relationships. However, if the

conduct in question was such as to attract that designation, then it was entirely justified both in the interests of the public and for

patient protection.

92. Given these and many other relevant considerations including the standard which had to be met so as to satisfy the “moral

turpitude test”, it was entirely appropriate for O’Laoire to insert the requirement of “seriousness” before professional misconduct could

be established, even if that term was not contained explicitly in s. 45 of the Act. Quite clearly that interpretation of the 1978 Act has

been widely known and unconditionally followed for almost 20 years before the amendment. It must therefore, be accepted that the

Oireachtas was fully aware of this jurisprudence when contemplating, and later enacting, the 2007 Act. Should therefore the same

threshold apply to “poor professional performance”?

93. There are some striking features of this statutory regime which must be highlighted. Firstly, no distinction is made, within the

terms of s. 71 of the 2007 Act, between what sanctions might be imposed on a finding of poor professional performance as distinct

from professional misconduct, thus leaving available to the Medical Council, on a finding under the former heading, each and every

one of the specified sanctions, including the cancellation of a practitioner’s registration. Secondly, there is no provision whereby a

practitioner, who receives advice or is the subject of admonishment or censure, can appeal the finding of the F.P.C. or the sanction

imposed by the Medical Council, to the High Court, in the manner available in respect of all other sanctions. Furthermore, in

conjunction with this restriction, there is no obligation either on the Medical Council to seek confirmation of the decisions involved,

whereas even in the absence of appeal it must do so, in all other circumstances. In effect therefore, save for judicial review which

continues to have significant limitations regarding fact and inferences, there is no way in which such findings can be re-assessed on

merits. These matters last mentioned can only be seen as reflecting a view that admonishment or censure should be regarded (by a

practitioner) as almost meaningless. As the evidence discloses in the case this is far from the reality.

94. Furthermore, in view of the public media attention which is paid to proceedings before the F.P.C. and the Medical Council, having

regard to the notification of any finding to the public and other regulatory bodies, both domestically and internationally and noting the

absence of any process of challenge on merits, it seems to me that the conclusion above arrived at is well justified.

95. To agree with the submission of the Medical Council would mean that any lapse or mishap, no matter how trivial, minimal, devoid

of effect or consequence, or truly de minimis in every respect, would be capable of constituting poor professional performance. If this

should be the result of the amendment in 2007, the same resulted in the creation of a harsh or even ruthless regime, making the

practice of medicine over one’s career almost hazardous to the point of virtual folly: it would indeed be few who could navigate that

journey without having to berth at some point at the port of the F.P.C. I cannot believe that such was intended nor do I accept that

such would be in the public interest: such would not reflect an appropriate balance between practice and protection. Therefore I

would refuse to adopt such an interpretation of the term, unless coerced into so doing. Thankfully, that is not the situation.

96. For the reasons above stated, it follows therefore in my view, that the definition of poor professional performance must be read

as if qualified by the word “serious” in the same manner as the phrase “professional misconduct” is.

97. It is neither desirable nor necessary to try, by some other form of words or expression, to further elaborate on what the word

“serious” means. It can however be said that not every error, lapse or mishap will qualify: conduct which can truly be described as

trivial, minor or which can be classified as de minimis will fall outside its meaning. Whilst outcome, adverse consequence or causative

effect are not essential, where present, such will be factors for consideration. Tortuous acts or contractual breaches may or may not

meet the threshold, depending on context and circumstances. Some activity will clearly fall within the definition and other clearly

outside. Some evidently will be borderline, in which case the same must be judged on a case by case basis.

98. These remarks do not relate to how an assessment or evaluation should be carried out under Part 11 of the 2007 Act. There are

in existence clearly defined and easily understandable statutory provisions and the Medical Council rules in this regard.

99. Having decided on this threshold, I can see no reason or benefit in using additional phrases such as “very serious” or “very grave”

to describe what conduct might constitute poor professional performance. To do so simply adds confusion and makes the functional

operation of the disciplinary process more complicated.

100. I am also of the view that for the purposes of s. 2 of the 2007 Act one does not have to wait, before moving, for “persistent or

repeated” substandard events to have occurred: to have to, may lead patients to be unnecessarily compromised. However

circumstances and context will be vital in order to assess whether particular conduct meets the threshold of poor professional

performance, just as such matters are in order to see whether conduct amounts to professional misconduct. Secondly, I see no

justification within the definition, or necessity arising out of the public interest, to treat any differently, conduct, by act or omission,

which has been committed only on a single occasion. If the threshold for substandard competence or misconduct is met, it would be

both illogical and anomalous to increase the threshold or elevate the test simply because such conduct had not taken place

previously. Again, context and circumstance will be crucial.

101. Summary of Main Findings:

(1) The term “poor professional performance” has a threshold of seriousness built into it: therefore only conduct or

activity, by act or omission, which reaches that level, can be said to meet the test.

(2) This threshold applies whether the allegation be one of singularity or as involving more than one incident or

activity.

(3) There is no different and by implication a more serious test, for an isolated incident such as “very serious” or

“grave” or words of similar description: such is not justified by the statute nor is it necessitated in the public

interest: to require the same would simply add confusion.

(4) Evidently in the normal course of events, it will be more difficult to meet the test if there is but one incident

alleged.

(5) Conduct which can truly be described as trivial, minor or which can be classified as de minimis, will not qualify.

(6) Whilst outcome, detrimental consequences or causative effect are not essential, where present will be factors

for consideration.

(7) Negligent acts or contractual breaches, may or may not qualify: circumstances and context will determine.

(8) A finding of poor professional performance does not depend on an assessment of a representative cross section

of a practitioner’s work, or as has been put, on the application of a “fair sample” test.

(9) Such type of evaluation is appropriate for the purposes of the provisions of Part 11 of the 2007 Act: when

invoked and where, despite opportunity having been given, the practitioner’s standard of competence remains below

the required level, the Medical Council can make a complaint: only at this point does the requirement of fair sample,

intersect with, the disciplinary provisions.

(10)Subject to such link however, this process is entirely separate and distinct from the making, investigation and

adjudication of a complaint made under Parts 7 – 9 of the Act.

(11)A finding of poor professional performance does not depend on conduct which impairs a practitioner’s fitness to

practise, or which calls into question his resignation.

(12)This equally applies to a finding of professional misconduct, although in either situation such finding may, but

does not necessarily have to, have such effect.

102. In conclusion, as both the F.P.C. and the Medical Council proceeded on an erroneous basis in law, I would dismiss the appeal.