Professional Regulation and Discipline: “Misconduct” and “Poor Professional Performance” in Irish Law
12 February 2015
Corbally v The Medical Council & Others  IESC 9
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.
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.”
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.
Mr Justice Hardiman noted that the interpretation of “poor professional performance” turned on a question of statutory construction. He outlined the development of the regulation and disciplining of the medical profession in the UK and Ireland, and drew close comparisons between the concepts of “deficient professional performance” and “poor professional performance” under the respective statutory regimes. He noted that, in England, it was established law and practice that a ‘seriousness’ threshold attached to the former concept. He referred to “…the long historical continuity of relations between the medical communities in the UK and Ireland, and the well-established practice of citing relevant English authorities in Irish courts.” In this context, he felt that the Irish legislature ought not lightly to be taken as having intended to differentiate sharply from the English position when it introduced the concept of “poor professional performance” in the 2007 Act. In his view, had it wished to deviate from that position, and to legislate so as to render sanctionable non-serious failings by a medical practitioner, it would have used explicit language to bring that about. He further noted that the same, full, range of sanctions could be imposed for “poor professional performance” as could be imposed for “professional misconduct.”
Though not relying on this for his conclusion, Hardiman, J also referred with interest to parliamentary material from the period when the 2007 Act was being debated as a Bill. He noted that express inclusion of a criterion of ‘significance’ had been proposed as an amendment, but later withdrawn, on the basis that this criterion was already inherently necessary and implied as part of our law. In that regard, the debates made reference to the judgment of Mr. Justice Keane in the leading Irish decision of O’Laoire v The Medical Council, in which it was held that conduct alleged to constitute “professional misconduct” had to be sufficiently serious. This was because regard had to be had to the grave and disproportionate impact a disciplinary proceeding, including its mere ventilation, and any upholding of a complaint, could have on the good name and livelihood of a medical practitioner.
Finding the principles in O’Laoire to be fully applicable here, the Court in Corbally ultimately found that the absence of the words “serious” or “significant” from the definition of “poor professional performance” was - and could be - of no significance. Therefore, a threshold of ‘seriousness’ had to be met before a prima facie case could be established, and a medical practitioner fairly or justly subjected to what Hardiman, J called “the extremely threatening ordeal of a public hearing”, with the grave consequences associated with even “…the mere ventilation of such an allegation…”, as well as those associated with upholding it. To hold otherwise would not reflect the intention of the legislature, nor would it adequately vindicate the constitutional rights of a medical practitioner to his good name and to earn a livelihood.
While the judgment focused primarily on the interpretation of “poor professional performance”, Hardiman, J also adverted to the failure of the FPC to state to Professor Corbally and his representatives that it was departing from advice received from its legal assessor, and to give “clear and cogent reasons” for this. Referring to the High Court decisions in Prendiville v Medical Council and McManus v Medical Council, the Court noted that, whilst it was entitled to depart from that advice, these failures denied Professor Corbally the opportunity to comment on the basis on which the FPC was actually going to approach the question of whether poor professional performance had been established. The Court observed that this alone might have been sufficient to quash the decision of the Medical Council in this case.
The precise wording and context of any individual disciplinary code must always be considered.
However, in light of this judgment, professional regulators and disciplinary bodies should be careful to check that any alleged professional misconduct, or poor professional performance, is sufficiently serious before identifying that there is a prima facie case for an inquiry, or proceeding against a professional at all.
In deciding to rehearse any proceedings, they will need to consider, on the one hand, the seriousness of the falling-short alleged, and, on the other, the distress, publicity and gravity of the potential consequences for the professional. Having regard to the constitutionally-protected rights to a good name and to earn a livelihood, this is particularly so where any proceedings might be held in public, or they - or their outcome - could be the subject of publicity, or where the rehearsal of the allegations and/or any findings and ultimate determination could have grave consequences for the reputation and practice of the professional concerned. Even if a case does proceed, disciplinary bodies will need to apply these principles before finding that the case is proven and/or imposing any sanction, including a minor one.
While bodies may take, and either follow, or depart from, legal advice, they must disclose the advice to the professional concerned, or in the case of rejection, “clear and cogent reasons” for this. The proposal to follow or depart from advice will represent a proposed approach to the question before the body, and as a matter of procedural fairness, it must therefore afford the professional concerned an opportunity of making submissions on that approach, before finally considering the question at issue, and lawfully making any finding or determination.