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Professional Regulation and Discipline: “Misconduct” and “Poor Professional Performance” in Irish Law

12 February 2015

Corbally v The Medical Council & Others [2015] IESC 9

Background

In 2012, rejecting the advice of its legal assessor, the Fitness to Practise Committee (“FPC”) of the Medical Council (the “Council”) recommended to the Council that it make a determination of “poor professional performance” in respect of Professor Corbally, a distinguished and experienced surgeon with a practice previously rated by the Council itself as “outstanding.” The recommendation was in connection with what the Supreme Court described as the Professor’s “…once-off error in a handwritten description of a proposed surgical procedure which was not serious in its nature or effect, which misled no-one, and which had no consequences…” Although not caused by the error, but in circumstances of unfortunate, associated, confusion, another surgeon in the hospital concerned carried out a lingual frenulectomy, rather than the actually-required upper frenulum release procedure.  However, this was later corrected in a further, straightforward, procedure on the same day. The Council found the case of “poor professional performance” proven, and out of the full range of sanctions available to it, imposed the minor sanction of “admonishment.”  In light of this, and of the absence of a statutory appeal being available, Professor Corbally instituted judicial review proceedings to quash both the underlying findings of the FPC and the determination of the Council.

High Court

The President of the High Court found in Professor Corbally’s favour.  Relying on the English High Court decision in R. (Calhaen) v The General Medical Council, he held that “poor professional performance” was conceptually separate from the further, and individually distinct, concepts of negligence and misconduct.  Poor professional performance connoted a standard of professional performance which was unacceptably low, and which, save in exceptional circumstances, had to be demonstrated by reference to a fair sample of a doctor’s work.  The President agreed with Calhaen in considering that a single occurrence of deficient professional performance, unless sufficiently serious, which this one was not, was unlikely to constitute “poor professional performance.”  

Supreme Court

The Council appealed the High Court decision on the primary basis that the Medical Practitioners Act 2007 (the “2007 Act”) did not expressly or implicitly require any threshold of "seriousness" to be met in order to establish “poor professional performance.”  The Council conceded that, if such a threshold was required, Professor Corbally’s conduct would have fallen short of it.  However, the Act did not contain such a criterion, and also seemed to have intended a distinction from the more serious ground of “professional misconduct.”  The Supreme Court dismissed the appeal, for the reasons set out below.

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