This is the appeal of the first-named respondent and appellant, the Medical Council, against the judgment and order of the High Court (Kearns P.) dated the 14th November, 2013 (order perfected on 14th January, 2014). By this order the High Court granted the applicant (Professor Corbally) an Order of Certiorari quashing the decision of the Medical Council of the 6th October, 2012 whereby the Medical Council imposed a sanction, namely an admonishment, on the applicant in respect of his “poor professional performance”. The High Court Order also quashed, by a further Order of Certiorari, the purported underlying finding of the Medical Council’s Fitness to Practise Committee contained in a report dated 6th October, 2012, being a finding of poor professional performance.
The High Court also made certain ancillary and consequential orders, unnecessary to consider at this stage.
This is an unfortunate and in many ways a sad case. The applicant, Professor Martin Corbally is not merely a competent doctor but a very distinguished one. At the time of the hearing of judicial review proceedings instigated by him, he was Professor of Surgery and Head of the Department of Surgery at the Royal College of Surgeons in Ireland’s Medical University, Bahrain, and Chief of Staff, King Hamad University Hospital, as well as being a Consultant Paediatric Surgeon there. Prior to this he had been a Consultant Paediatric Surgeon in Our Lady’s Hospital for Sick Children in Crumlin, Dublin. He is a medical graduate of University College, Galway (1978) and a Fellow of the Royal College of Surgeons in Ireland (1982). He is licensed to practice surgery in the State of New York and holds the post graduate degree of Master of Surgery (M.Ch). He is an associate member of the Royal College of Physicians in Ireland and an Honorary Fellow of the Royal College of Surgeons in Edinburgh. He has held a Research Clinical Fellowship at the Sloan Kettering Hospital in New York. He has previously held Senior Registrar positions in Temple Street Childrens Hospital, Dublin, and in Great Ormond Street Childrens Hospital, London. He was Consultant Paediatric and Oncology Surgeon at Bristol Childrens Hospital; he held the position of Honorary Consultant Liver Transplant and Hepatobillary Surgeon at King’s College, London and held visiting fellowships in Omaha, Nebraska, and the University of Pittsburgh, Pennsylvania, USA. He has spent several periods of voluntary service overseas, in Africa and in Vietnam.
Professor Corbally was appointed a Consultant Paediatric and Neonatal Surgeon at Our Lady’s Hospital for Sick Children and is now on sabbatical leave from that hospital, holding the positions described above in Bahrain.
Professor Corbally’s responsibilities and workload at Crumlin were very great, indeed, to a lay person, almost intimidatingly so. The hospital is a National referral centre. At the time to which the allegations against Professor Corbally relate, there were two full time and two part time surgeons at the hospital, well below the recommended ratio of paediatric surgeons per head of the population, which is one paediatric surgeon for a population of three hundred thousand to three hundred and fifty thousand. Professor Corbally says without contradiction that Ireland has the lowest per capita ratio of paediatric surgeons to population in Europe, while it also has the highest birth rate. By contrast, in 2010 there were six paediatric surgeons in Belfast. Professor Corbally was the lead Neonatal Surgeon, the sole Paediatric Surgical Oncologist for the National Paediatric Oncology Service, with responsibility for vascular access for chemotherapy and for the Surgical Resection of Liver, Renal and other solid tumours in children. He was also an Associate Professor of Paediatric Surgery in the College of Surgeons. He was responsible for the surgical care of between one thousand and one thousand two hundred patients a year. In addition to that, he saw eighty to one hundred patients a week in his outpatient clinics.
Certain comments on this workload, insofar as it is relevant to the present case, are made later in this judgment. What is important, and also uncontradicted, is that the staffing levels of paediatric surgeons was significantly below the recommended level. Professor Corbally was regularly on call ten to twelve nights per month, in addition to the surgical and outpatient duties. At the time he wrote the note which is the basis of the present complaints, he had been on call on five of the previous seven nights.
Over and above his curriculum vitae whose landmarks are in some instances current or very recent, but in other instances relate to the remoter past, Professor Corbally voluntarily underwent in 2008 a “360 degree Feedback Analysis” review administered by the Medical Council itself. In this, his practice generally was rated as outstanding on an analysis of the views of patients as well as peers. This was a pilot scheme set up by the Medical Council in view of the passage of the Medical Practitioners Act 2007.
The present case arises from the fact that, in most unfortunate circumstances, this very distinguished and experienced practitioner has found himself at odds with the Medical Council, the statutory body established for the regulation of the medical profession. This arises from the fact that the Medical Council, acting on a report from its Fitness to Practise Committee, decided to impose the sanction of “admonishment” on the applicant. This occurred after the Fitness to Practise Committee found him guilty of three allegations of “poor professional performance” in relation to a very simple surgical procedure which took place in Crumlin Hospital on the 30th April, 2010. The applicant hotly disputes these allegations and has always done so. Five other allegations made him against him in respect of the same procedure were dismissed or discontinued by the Committee itself.
It seems fair and accurate to say that Professor Corbally is outraged at the findings against him, in addition to being deeply distressed by them. It seems quite clear that they had had life - and career-changing consequences for him. In particular, he has been subjected to extraordinarily damaging press coverage and comment which has not always been characterised by fairness or moderation. Subsequent to the findings of the Medical Council Professor Corbally instituted legal proceedings, which will be discussed in the next section of this judgment, and transferred his professional activities to the Royal College of Surgeons in Ireland’s hospital in Bahrain.
The proceedings (1).
The only part of Professor Corbally’s proceedings which this judgment addresses is his claims to quash, by way of judicial review, the determination of the Medical Council and the earlier and underlying findings of its Fitness to Practise Committee.
No appeal available.
It is very apparent to anyone who reads Professor Corbally’s affidavit that he utterly rejects the findings of the Fitness to Practise Committee and finds them inexplicable. Nevertheless, he was obliged to have recourse to the relatively technical remedy of judicial review because there was no appeal on the merits available to him. This, in turn, arose from the fact that the sanction imposed on him as a result of the Council’s and Committee’s findings was solely that of admonishment. That is the least of the sanctions that could have been imposed pursuant to s.71(a) of the Medical Practitioners Act 2007, as amended. If a more serious sanction such as striking off or suspension, or the attachment of conditions to his registration had been imposed, he would have had available to him an appeal on the merits. But, as it is, he had no recourse whatever available to him other than to seek judicial review by way of Certiorari.
I entirely agree with what is said by the learned President of the High Court at p.11 of his judgment to the effect that while the sanction is not considered sufficiently serious to entitle him to an appeal on the merits nevertheless:
The gravity of the matter from the perspective of the applicant could hardly be greater because he was the subject of extensive media coverage in relation to this case, which had it been a trial before judge and jury would most certainly have caused the trial to be aborted.
Professor Corbally was also in the position that, had he not taken legal steps to protect himself the decision of the Committee and the Council would have been notified to the public and to the registration authorities in Bahrain.
Nevertheless, the present phase of these proceedings are applications for judicial review and are not an appeal on the merits. It is plain to anyone who reads the applicant’s affidavit and submissions that he is eager to address the findings made against him on the facts and on the merits but it must be understood by both sides that a court has no power, on an application for judicial review, to substitute its own view of the merits for those of the primary deciding body. Its focus is on how the decision was made, especially in what concerns basic fairness, not the merits of the decision itself.
The present proceedings (2).
The applicant has not confined himself to seeking to quash the findings against him and the sanction imposed, on judicial review. He also claims that Part VIII of the Medical Practitioners Act, 2007, insofar as it fails to provide the applicant with an appeal from the Medical Council’s decision and from the Fitness to Practise Committee findings, contravenes a certain constitutional rights which inhere in him, and is for that reason unconstitutional. He also claims a declaration, pursuant to s.5 of the European Convention on Human Rights Act, 2003, that Part VIII of the Act of 2007 is for the same reason incompatible with the State’s obligation pursuant to Article 6(1) of the Convention itself.
By agreement between the parties, in the High Court, these claims of unconstitutionality and of incompatibility with the Convention were not proceeded with pending resolution by the High Court of the judicial review claims. When, subsequently, the Medical Council appealed the High Court order, these issues were further deferred pending the outcome of this appeal, by agreement.
It is fair to say that these proceedings have been conducted with the utmost rigour and pertinacity on both sides. But no artificial, or merely technical, or wholly unreasonable argument was advanced by either side, and there was a considerable element of agreement as to the issues which required to be addressed. The Medical Council, indeed, isolated the “central issue for determination in this appeal” as:
The extent to which once-off errors .... can be the subject of a finding of “poor professional performance” within the meaning of the Medical Practitioners Act, 2007.
The material quoted immediately above is taken from the Medical Council’s written submissions. Having heard the argument on both sides, I think that a corresponding brief statement of the case for Professor Corbally might be expressed as follows:
The extent to which a 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, can be the subject of a finding of ‘poor professional performance’ within the meaning of the Medical Practitioners Act, 2007.
The Medical Council also conceded in the course of argument that if it were necessary, in order to establish “poor professional performance”, to prove behaviour on behalf of a doctor which “seriously fell short of the standard expected”, the Medical Council could not meet this test in the present case. But it denied that the legislation requires any threshold of “seriousness” to be met.
I am quite satisfied, having regard to the facts of the case, that this concession by Mr. Eoin McCullagh S.C. for the Medical Council was an absolutely necessary one for the appellant to make. It must also be recorded, however, that Mr. McCullagh was equally trenchant in advancing the view that there was no need, in order to make out a charge of “poor professional performance”, to show that the facts established had been causative of any actual damage to a patient. While reserving the position that causation might be of some relevance on another set of facts, he contended that “it [causation] is of no relevance in this case”.
Findings of Fact.
In this appeal, the Medical Council relies on nineteen grounds of appeal set out in the Notice of Appeal dated the 30th January, 2014. Of these, only four (nos. 7, 8, 12 and 13) are stated by the appellant to be matters purely of fact. Only one of these grounds challenges a finding of primary fact made at pages 3 to 7 of the judgment, and the sole exception does not appear to me to have been persisted with. (It related to the circumstances in which Professor Corbally attended to another patient instead of performing the very simple operation now in controversy). Accordingly, I now gratefully set out and adopt the findings of the learned President from p.3 to 7 in his judgment:
In early 2010, patient X, then two and a half years of age, was referred to the applicant’s private clinic in Our Lady’s Children’s Hospital in Crumlin by her G.P. with a history that the frenulum under her top lip was catching, causing an ulcer under that lip and contributing to a gap in her front teeth.
There are three frenula (congenital folds of tissue) in the mouth: an upper frenulum (a fold of tissue between the inner aspect of the upper lip and the anterior gum margin), a lower frenulum (between the lower lip and the anterior lower gum margin) and a tongue or lingual frenulum (under the anterior surface of the tongue). All three are small folds of tissue found in the midline.
Having examined patient X on the 25th February, 2010, the applicant recommended division of her upper frenulum, a straightforward and minor surgical procedure which normally takes less than one minute to complete. In writing up his notes of the examination, the applicant, who had correctly diagnosed patient X’s condition, described the required procedure as excision of “upper lingual frenulum”. There is no upper lingual frenulum and it is perhaps more accurately described as an ‘upper labial frenulum’.
On the 11th March, 2010, the applicant booked the patient in for her procedure and correctly completed an admissions form for the patient, listing her for a “tongue tie (upper frenulum)”. The procedure was to be performed as a day case on the 30th April, 2010. This form was sent to the admissions department where the patient’s details and the proposed procedure were entered into the patient administration system. Unfortunately the reference to the upper frenulum, through no fault of the applicant, was not inputted into the hospital system.
Difficult as it is to believe, the system as it then operated in Crumlin had one code only for all frenula dissection – all three types being described as “tongue tie”. That being so the operation was inputted in the system as “tongue tie release” without the addition of the words “upper frenulum”.
Following her admission on the 30th April, 2010, the patient’s family provided and furnished a consent to the procedure to the applicant’s senior house officer, Dr. A.J. Orafi, for a “tongue tie – upper frenulum release”. It is interesting to note that in the account of the consent process furnished by the mother of patient X, she maintains that when the doctor started to describe her daughter’s case as a “tongue tie procedure” she corrected the doctor by saying that it was her upper lip that needed a release and not her tongue. The junior doctor apparently stated that the procedure would still be called tongue tie. However, on the consent form also the procedure was clearly described as “tongue tie (upper frenulum) release”. It is worth noting that this pre-operative conversation took place in the presence of one of the nursing staff, Nurse Pollard, but it appears that this particular detail, for whatever reason, was not passed on to the surgical team in accordance with the “Correct Site Surgery Policy”.
While the applicant had intended to perform the surgery himself, he was called as a matter of urgency to attend to another patient in the intensive care unit. His account of events makes clear he was working under considerable pressure at the time. His specialist registrar, Dr. Farhan Tareen was thus delegated by him to perform the procedure. There is no issue but that the procedure was well within Dr. Tareen’s capability.
On the occasion in question the applicant accepts that he asked Dr. Tareen in the hospital corridor what was happening with the theatre list, reviewed it and asked Dr. Tareen to perform the tongue tie. The applicant asserted that he delegated the procedure by referring to the description on the theatre list. The hospital at the time had a protocol for a “surgical pause/time out” procedure in advance of the commencement of surgery. Both Dr. Tareen, the anaesthetist and nursing staff were present at the surgical pause. The purpose of the surgical pause is to undertake and complete a check to ensure that the correct patient is listed for the correct procedure at the correct site.
No evidence was given to the inquiry before the FPC that anyone during the surgical pause ever looked at the applicant’s notes. However, confusing as the original entry might have been, any confusion, had it arisen for that reason, would have been quickly eliminated by reference to the consent form, the admissions card, or to the pre-operative discussion between the parents of patient X and the SHO and/or Nurse Pollard, wherein the patient’s mother drew express attention to the site of difficulty.
Unfortunately, Dr. Tareen, in respect of whom charges were not pursued at the hearing before the FPC, carried out a lingual frenulectomy, which was an unnecessary procedure and one which, having been carried out, left the patient still requiring the upper frenulum release which was undertaken when the child was brought back to theatre that same day.
It is perhaps important to stress that this second procedure was uneventful and the child made a full recovery after a short period of pain and discomfort from the lingual frenulectomy and is suffering no ongoing disability as a result of the unnecessary operation which was performed.
Nevertheless, her parents were understandably upset and annoyed that the particular incident occurred and lodged a complaint with the first named respondent on the 4th September, 2010, alleging poor professional performance against Professor Corbally and his colleague Dr. Tareen.
From the outset, the applicant admitted that his wording of the procedure in his original notes was inaccurate and made a full and comprehensive apology to the parents of patient X. In fairness, everyone involved in what had occurred quickly realised that a series of errors and poor communication had brought about the particular mishap which at least had the fortunate consequence that a completely new protocol for such procedures was devised and put into place at the hospital so as to ensure that no such confusion or mistake could ever again occur.
Later, at p.40 of the judgment, the learned President makes the following findings of fact.
The real problem in this case undoubtedly lay with the systems in operation in Crumlin Hospital at the time which did not permit the applicant’s detailed description of the required procedure set out in the admissions card to be fully and properly transcribed. In fact, the system itself excised the words ‘upper frenulum release’ from the system. Add to that the fact that the consent form accurately described the procedure and also the fact that a specific discussion took place between the mother of the child and the SHO and nurse who attended the operation which clarified precisely what was required, and one is forced to conclude, on any rational and reasonable basis, that the applicant’s initial error was not causative of the subsequent damage.
It is also convenient to set out here the allegations against Professor Corbally, arising out of the above set of facts, which the Medical Council persisted with to a conclusion adverse to Professor Corbally. These were allegations No. 1, 6 and 8 on the original statement of allegations and they alleged as follows, in summary form:
No. 1. That on or about the 25th February, 2010, Professor Corbally incorrectly described the procedure required for the patient as dissection of ‘Upper Lingual frenulum’.
No. 6. This allegation alleged that Professor Corbally on or about 30th April, 2010 delegated the child’s surgery to Dr. Tareen in circumstances where he failed to communicate adequately or at all to Dr. Tareen the procedure to be performed on patient X.
No. 8. This allegation was alleged that Professor Corbally failed to apply the appropriate standards of clinical judgement that could be expected from a surgeon of his experience and expertise. It was agreed that this was not a freestanding allegation but depended on at least one of the other allegations being established.
The Legal Issue.
The single legal issue identified by the Medical Council turns on a question of statutory construction. To understand this point fully it is necessary to mention some features of the regulation of the medical profession historically.
The predecessor of the current system of medical registration was common to Great Britain and Ireland from Victorian times onwards. See Medical Act, 1858, 21 & 22 Vict. cap. 90 and its successors. However, the principal enforcement mechanisms have deviated somewhat, at least in verbal terms, between Great Britain and Ireland in recent years.
Under the United Kingdom Medical Act, 1983 only “professional misconduct” was sanctionable, by virtue of s.36. However the Medical (Professional Performance) Act, 1995, s.1 inserted an additional provision into s.36 of the 1983 Act in order to embrace the concept of professional performance which is “seriously deficient”. In the United Kingdom, that test was itself superceded by the Medical Act, 1983 (Amendment) Order 2002 which provided for enquiries by an Investigation Committee into whether or not a practitioner’s fitness to practise is “impaired”. This measure went on to provide as follows:
For present purposes, the significant Parts of the United Kingdom Code is the adjective in the phrase “seriously deficient” and its subsequent deletion; and the phrase, in the 2002 Instrument, “deficient professional performance” this may be contrasted with the phrase in the Irish measure considered below; “poor professional performance”.
It is important at this stage to set out the relevant Irish statutory material.
By s.57(1) of the Medical Practitioners Act 2007 it is provided that a person (including the Council) may make a complaint concerning a registered medical practitioner on one or more of seven grounds. The only ones of any conceivable relevance to the present case was the first two viz:-
The definition of professional misconduct is not immediately relevant and will in any case appear when the authorities are considered below. The definition of “poor professional performance” appears in the definition section of the Act (s.2). This provides that:
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 practiced by the practitioner.
Succeeding Sections make various provisions, procedural and otherwise for the processing and eventual hearing of such complaints and for the sending of a report by the Committee which hears the complaint to the Medical Council. It is notable that these provisions apply whether the allegation or finding is one of professional misconduct or of poor professional performance.
By s.71 of the Medical Practitioners Act, 2007 it is provided that:
Subject to s.57(6)(a) and 72, the Council shall, as soon as is practicable after receiving and considering the report referred to in s.69(1) of the Fitness to Practice Committee in relation to a complaint concerning a registered medical practitioner where s.70(b) is applicable [that is, if any of the allegations are found proved] decide that one or more than one of the following sanctions be imposed upon on the practitioner:
A significant aspect of the foregoing statutory scheme is that the “sanctions” which are available in the case of a finding of poor professional performance are exactly those available in the case of a finding of professional misconduct. These include “cancellation of a practitioner’s registration” i.e. striking off the medical register. There is, therefore, no sense in which the offence of “poor professional performance” is intrinsically less serious than “professional misconduct”. Indeed, it appears to me from a consideration of the relevant Sections of the Act of 2007, there may be some lacuna in the consideration by the drafters of the measure of what precisely is intended to be the difference between the two delicts and whether it is intended, or not, that one be intrinsically less serious than the other. It is noteworthy that, in the present case, all of the factual allegations against Professor Corbally were alleged to constitute both professional misconduct and poor professional performance. However, the Registrar of the Medical Council withdrew the allegations of professional misconduct in their totality, and withdrew four of the allegations of poor professional performance, before the oral hearing got under way.
I pause to remark that, as is natural in countries such as Ireland and the United Kingdom which are geographically close and historically, culturally and linguistically closely connected, there is a considerable history of Irish or Irish qualified doctors receiving their higher professional training in the United Kingdom and, in more recent times, of English or English qualified doctors practising in Ireland. The leading British medical texts and professional and academic journals circulate here and are widely read in the profession. There must be many Irish doctors who, like Professor Corbally, held Senior Registrar and Consultant positions in Great Britain before returning to practise here. It can hardly be disputed that this is a desirable thing for the Health Service in Ireland, as are parallel exchanges in relation to the United States, Canada and Australia. By this means, the Irish medical profession is kept intimately abreast of developments in larger countries whose health services have a much greater throughput of patients including patients with rare and difficult conditions. It seems very desirable that these processes, which are based on mutual knowledge and mutual respect in relation to medical training and conditions of practice, should not be complicated or made strange to persons from the other jurisdiction, without good reason.
Despite this, of course, the Irish legislature is perfectly free, if it so wishes, to institute an entirely different system for the regulation of the Irish medical profession. But, having regard to the long historical continuity of relations between the medical communities, and the well established practise of citing relevant English (and other Common Law) authorities in our courts, I would not lightly conclude, in the absence of express language, that the legislature had in fact decided to differentiate sharply between the respective systems of medical regulation. The immediate relevance of this discussion is that there is no doubt, on the English authorities, that a threshold of seriousness is attached to “deficient professional performance”, in that jurisdiction. In light of this, and of the case law, both Irish and English which is discussed in the immediately following Section of this judgment, I consider that if it were the wish of the Oireachtas to legislate so as to render sanctionable, either as professional misconduct or as poor professional performance, non-serious failings by a medical practitioner, it would be necessary to use explicit language to bring this about.
The leading Irish case on this topic is O Laoire v The Medical Council (unreported), High Court, Keane J. 27 January, 1995. At the time this case was decided the key concept in the Medical Practitioners Act, 1977 was that of “professional misconduct”: the notion of poor professional performance was not introduced until 2007. The relationship between the two will be discussed below.
At p.99 of O Laoire Keane J. (as he then was; later Keane C.J.) said:
The meaning of ‘professional misconduct’
The expression ‘professional misconduct’ is not defined in the Act. Its meaning, and that of corresponding expressions which appeared in earlier legislation, has however been considered in a number of authorities in Ireland and England ....
At p.100 Mr. Justice Keane referred to Re Lynch and Daly  I.R. 1, which was a veterinary case, but the statutory regulation was in similar terms. Keane J. noted that the practitioner, in order to be sanctionable, had to be “guilty of conduct disgraceful to him in a professional respect”.
Keane C.J. went on to cite with approval Alinson v General Council of Medical Education and Registration  1 QB 750 where the corresponding term was “infamous conduct in a professional respect”.
He also cited Felix v General Dental Council  AC 704 which referred to “infamous disgraceful conduct in a professional respect” and observed that it was “not enough to show that some mistake had been made through carelessness or inadvertence in two or even three cases out of four hundred and twenty-four patients” but that “some element of moral turpitude or fraud or dishonesty in the conduct complained of, with such persistent and reckless disregard of a dentist’s duty in regard to records as can be said to have amounted to “dishonesty” was required for this purpose.
Turning again to Alinson Keane J. stated that:
[The misconduct] fell to be judged in relation to the accepted standards of his profession.
Keane J. quoted the judgment of Lord Jenkins as follows:
These two adjectives nevertheless remain as terms denoting conduct deserving of the strongest reprobation, and indeed so heinous as to merit, when proved, the extreme professional penalty of striking of.
Keane J. next noted the change in the statutory terminology in England from “infamous or disgraceful conduct in a professional respect” to “serious professional misconduct”. The significance of this is illustrated by Lord Mackay of Clashfern in his judgment in Doughty v General Dental Council  3 AER 843. Keane J. quoted the following passage:
The Lordships regularly accept that what was infamous or disgraceful conduct in a professional respect would also constitute serious professional misconduct but they consider that it would not be right to require the Council to establish that the conduct complained of be infamous or disgraceful and that therefore it would not be right to apply the criteria which Lord Jenkins derived from the dictionary definitions of those words ....
The foregoing considerations, and others, led Mr. Justice Keane to the following conclusions:
From these authorities, I think, that the following principles can be deduced:
It is therefore clear that conduct alleged to constitute “professional misconduct” must meet a threshold of “seriousness”: see para. 5 above.
In the High Court in the present case, the learned President considered both the Irish and the United Kingdom statutory regimes and was assisted by the judgment of Jackson J. in R. (Calhaen) v The General Medical Council  EWHC 2606 (Admin). There, the learned judge was of course concerned with the English formulation “deficient professional performance” which the President did not find to be significantly different from the Irish statutory phrase “poor professional performance”. This conclusion seems borne out by a consideration of the Dictionary meanings of the relevant words. The learned President accepted that both phrases, the Irish and the English ones, are each “conceptually separate from the concepts of negligence on the one hand and misconduct on the other”.
The General Medical Council in England, like the Medical Council in this jurisdiction, is empowered to offer and publish advice to medical practitioners. The General Medical Council’s Committee on Professional Performance interpreted the English statutory phrase as meaning “seriously deficient performance” in the following phrase; in a guidance document addressed to doctors:
Seriously deficient performance is a new idea. We have defined it as ‘a departure from good professional practise, whether or not it is covered by specific GMC guidance, sufficiently serious to call into question a doctor’s registration’. This means that we will question your registration if we believe that you are, repeatedly or persistently, not meeting the professional standards appropriate to the work you are doing – especially if you might be putting patients at risk.
It is therefore apparent that (even without the adjective “serious” or any cognate word appearing in the statute or statutory instrument which defines the offence for which sanction is provided), the Courts of the neighbouring jurisdiction and the General Medical Council have implied such a threshold for reasons very similar which led Mr. Justice Keane, in this jurisdiction, to imply a precisely similar threshold for “professional misconduct”.
The Medical Council, the appellant in the present proceedings, says there is no threshold of seriousness expressed in the statute and that ought to be sufficient to allow a conclusion that no such threshold is intended. It says that the English authorities are not helpful because the Irish statutory regime is different.
In Calhaen Jackson J. reviewed the authorities comprehensively and derived five principles, the third and fourth of which are of particular importance. At para. 39 of the judgment he said:
From this review of the authorities, I derive five principles which are relevant to the present case:
It will be observed, in light of the above, that Professor Corbally’s position on the legal issue is very similar to that endorsed by the English case of Calhaen and, in relation to the previous statutory regime, by Mr. Justice Keane in O Laoire. The Medical Council, however, says that this position involves reading a word such as “serious”, or some cognate word, into the statute and that this is simply not possible for a court to do.
I wish to indicate that I too have derived assistance from the learned and persuasive judgment of Jackson J., not least as to the circumstances in which, alone, a “once-off” error can constitute poor (or deficient) professional performance.
On the hearing of this appeal, the following information was brought to the Court’s attention by counsel for the respondent, Professor Corbally. It was the subject of the comment by counsel for the appellant, the Medical Council, considered below:
On Wednesday, 28th March, 2007, the Medical Practitioners Bill 2007 went through its report stage and its final stage in Dáil Eireann. The Labour Party spokesperson, Deputy Liz McManus, moved an amendment, Amendment No. 2. This was:
In page 11, line 35, after ‘a’ to insert ‘significant’.
It is important to be clear as to precisely what this amendment would have achieved. For that reason, I now set out the relevant part of p.11 of the Bill (as opposed to the Act), with Deputy McManus’s proposed amendment, the word “significant” within square brackets. The paragraph contains the definition of “poor professional performance”:
‘Poor professional performance’, in relation to a medical practitioner means a [significant] 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.
This is an inelegant form of words but its meaning seems tolerably clear. The words I have underlined are all the complete words which constitute line 35 on page 11. The indefinite article, “a” is the only use of that word in line 35 so it is perfectly clear where Deputy McManus, by her amendment intended the insertion of the word “significant” to take place.
The effect of Deputy McManus’s amendment, therefore, would have been to transform the reference to “a failure ....” by a medical practitioner to “a significant failure ....”
Deputy McManus explained her amendment by saying, with commendable brevity:
This relates to a concern I had with regard to differentiating between a significant failure by a practitioner to meet the standards of competence and the rather blanket term used at present. I understood the Minister would deal with this.
The Minister said:
I examined this and took legal advice. The strong legal advice received and the advice of the Medical Council was to stick with the case law.
The Minister continued:
In his decision in O Laoire v The Medical Council on 27 January 1995 Mr. Justice Keane stated:
Mr. Justice Keane also stated:
This is the case law and I am strongly advised by the Attorney General’s office and the Medical Council that the Bill is appropriate and only deals with what the judge stated – ‘seriously falls short of accepted standards’. Deputy McManus made the same point, that minor issues would not involve a doctor being struck off.
The foregoing passage appears in the record of the Dáil debates for the 20th March, 2007, Vol. 634, No. 5.
Amendment, by leave, withdrawn.
The Oireachtas had before it an amendment by Deputy McManus to insert the word “significant” so that the reference to “a failure” would have read “a significant failure”. The Deputy was of the view that the Minister had said she would look into this. The Minister said she had done so and the advice given her was that because of the decision in O Laoire “the Bill is appropriate and only deals with what the judge stated – “seriously falls short of accepted standards”.
For the purposes of this case I do not believe there is any significant difference between the word “serious” and its cognate words on the one hand and the word “significant” and its cognate words on the other.
It will be observed that the citation by the Minister of the judgment in O Laoire, is of a passage quoted earlier in this judgment in the analysis of the Irish case law.
When the foregoing passages from the record of Dáil Eireann was opened, Mr. Eoin McCullagh S.C. on behalf of the Medical Council stated that his client was not in agreement with what had been said by the Minister as to the advice tendered by the Council to her.
I do not find it necessary to have regard to the foregoing discussion as an aid to the interpretation of the Act of 2007. Therefore, I do not find it necessary to consider the two decisions of this Court – DPP v McDonagh  1 I.R. 565 and Crilly v Farrington  3 I.R. 251 which consider the admissibility of legislative history as an aid to construction, or to resolve any tensions between them.
I wish to say however, with great respect, that I entirely agree with the judgment of Mr. Justice Keane and with the passage just quoted in particular. I would apply a “seriousness” threshold to a finding of poor professional performance, as well as to professional misconduct for the precise reason stated by Mr. Justice Keane – only conduct which represents a serious falling short of the expected standards of the profession could justify a finding by the professional colleagues of a doctor of poor professional performance on his part, having regard, in particular to the gravity of the mere ventilation of such an allegation and the potential gravity of the consequences of the upholding of such an allegation. As mentioned above, there is no distinction in the sanctions available for poor professional performance and for professional misconduct, respectively.
It must be quite obvious that there are many forms of shortcoming by a medical practitioner which, however regrettable, do not amount to a serious falling short of the expected standards of the profession. The same remark applies to persons in any other occupation. A regulatory body must have the courage to say to complainants in an appropriate case who may be understandably aggrieved by an error that the error in question, even if established in evidence, is simply not capable grounding an allegation of misconduct or poor professional performance.
This case illustrates with painful precision why exactly this is so. Although it is true to say that the sanction proposed was the very lowest available the effect on Professor Corbally’s reputation and standing was nothing less than drastic. This resulted from adverse findings against him, which are not regarded as serious by the Medical Council, made by a majority vote of a committee consisting of a Professor of General Practice and two lay persons. The Committee held its proceedings in public and this enabled extensive publicity, some of which, as I have said, was lacking in fairness and moderation. I do not think it proper to subject any person to what happened to Professor Corbally except in relation to a serious matter. Moreover, if a failing does not need to be “serious” then a medical practitioner may be treated as Professor Corbally has been in respect of a non-serious or even trivial once-off failing. I do not consider this to be fair or just. More specifically, I do not consider it to be an adequate vindication of the constitutional rights of a person in Professor Corbally’s position, especially his right to his good name and his right to earn a livelihood. Still more to the point, I do not consider it to be what the Oireachtas expressed in enacting the Medical Practitioner’s Act 2007.
The original case against Professor Corbally.
We have already seen (paras. 19-20 above) that the Medical Council have strongly maintained that, on a correct interpretation of the Act of 2007, a doctor can be found guilty of poor professional conduct in respect of a shortcoming which is not “serious”. The Council has also maintained that there is no need whatever, in order to find a doctor guilty of poor professional performance, to demonstrate there has been any actual damage to a patient or that the shortcoming in question had any consequence. In this context, it was conceded by the Medical Council that, on the facts of the present case, it could not meet a “seriousness” threshold if, contrary to its argument, the statute required that this be done.
It must be noted, however, that in the evidence notified to Professor Corbally before the public hearing, as substantiating the case against him, it was unambiguously stated that the erroneous mis-description of the operation did indeed have consequences. The expert retained to give evidence against Professor Corbally on behalf of the Medical Council was a distinguished paediatric surgeon, Mr. Hugh W. Grant, who has wide experience both in South Africa and in the United Kingdom. He was formerly clinical lead in the Department of Paediatric Surgery at the internationally-known John Radcliffe Hospital, Oxford and is now responsible for clinical governance within that department. He has been an examiner for various Royal Colleges and is an Examiner for the intercollegiate examination in paediatric surgery for the Royal Colleges of Edinburgh, England, Glasgow and Ireland. He frankly conceded that his position, prestigious as it is, is not as onerous as that of Professor Corbally, as described at paras. 4-6 above.
There is no doubt of Mr. Grant’s high standing in the profession or that he is an absolutely appropriate person to give expert evidence in a case such as the present. Mr. Grant, like most expert witnesses, has no personal knowledge of the factual components of the case and must accept the facts, which he requires to form an opinion, from those instructing him. In the present case, he made his report on the 20th November, 2011. The report, significantly, is headed (emphasis added):
Report relating to incorrect surgery.
It seems obvious that this title for the report of the expert who was to give evidence on behalf of the Medical Council against Professor Corbally is only appropriate if the expert believes, or has been told, that the acts alleged against Professor Corbally caused the incorrect surgery. It will be evident, for many reasons, including the terms of the hospital’s own “Incident Report”, that this is not so.
At p.5 of his report Mr. Grant makes some very significant factual statements:
Professor Corbally started the chain of errors by the incorrect description of [the patient’s] problem.
The incorrect description of the problem and operation led to the subsequent errors.
In his direct evidence given before the Fitness to Practise Committee, however, Mr. Grant did not allege that the incorrect description in the handwritten outpatient notes to which Professor Corbally had always admitted had caused incorrect surgery. At p.7, question 8 of the transcript of the hearing on Tuesday 18th September 2012 Mr. Grant was questioned as follows by Ms. Eileen Barrington S.C., for Professor Corbally:
Later, at p.11, Q.21 the following occurs:
And a little later:
It is thus apparent that, though the Medical Council on the hearing of this appeal stoutly argued for the proposition that it did not have to show either damage to the patient or any consequence following from the alleged deficiency in professional conduct, the case it first proposed to make against Mr. Corbally was that his misdescription of the operation did in fact have consequences. These consequences, the result of what Mr. Grant calls “the subsequent errors” included the patient being subjected to incorrect surgery (on the lingual frenulum rather than the upper labial frenulum).
At the hearing before the Medical Council, Mr. Grant was very appropriately and politely, but pertinaciously, cross-examined by Ms. Eileen Barrington S.C. for Professor Corbally. On the 18th September, 2012, over some fifteen pages of the transcript, Ms. Barrington secured Mr. Grant’s concurrence in the proposition that:
If one assumes that no-one looked at the Outpatient Department notes it is correct to say that the root cause of the error in this case was the failure of administrative staff to correctly transcribe Professor Corbally’s admission card into the Hospital system.
Earlier in the cross-examination, Mr. Grant agreed that Professor Corbally had undoubtedly diagnosed the patient’s problem as being located in the upper labial frenulum; that he had correctly described this in a contemporaneous letter to the patient’s general practitioner; and that he had correctly inputted this information into the admission system. Notwithstanding these matters, Mr. Grant held the view that the original misdescription “in this case led to a chain of events”. (Page 9) He did however concede that if the admission note had not been properly registered by the hospital system “then the hospital process compounded the problem”. When it was put to him (p.13) that the sole factor which caused the incorrect surgery “was the failure to accurately input the admission card” he repeated that “I think it compounded the error, yes”. But, in fact, the outpatient notes mislead no-one because no-one read it prior to the first operation, as will be seen.
Mr. Grant had formed the impression that the Senior House Officer (a Junior Doctor) who took the consent from the patient’s mother had read the original handwritten outpatient notes before the operation but it clearly emerged in evidence that this was not so.
The SHO, Dr. Fatima Al Orafi gave evidence before the Fitness to Practice Committee on the 17th September 2012 at p.94ff of the transcript for that day. She was meticulously taken through the documents she saw by Mr. J.P. McDowell, for the Medical Council who explained that the “Theatre List” is “a document that develops and no longer existed in its original form” (p.96). She looked at it and identified it in the form in which it was shown to her but she said that neither of the lists had actually been available to her on the day. She described her interaction with the mother of the child and said that she had the words “tongue tie upper frenulum” pointed out to her by the mother. She said (p. 98) that she wrote “diagnosis – upper frenulum. Proposed surgery – tongue tie upper frenulum”. She said she got that information from her discussion with the mother and from the admission card and the chart. She said she understood precisely what was planned and she understood it as “kind of a tongue tie release on the upper frenulum”. She said she wrote the consent form “tongue tie upper frenulum and underlined the word upper”. She said she did this because “ I know that the consent form is what is looked at in the operation theatre (p.99).
She said that she had first thought that she would be present at the operation but in fact was diverted elsewhere. At. p.102, in cross-examination by Ms. Barrington S.C., she was asked whether she acknowledged “that in retrospect you should have communicated this issue [the upper frenulum issue] up the line”. She answered “Definitely yes, definitely”.
Although the surgeon, Dr. Tareen, (who had originally been charged with Professor Corbally) gave evidence, he does not appear to me to have been asked how the wrong operation came to be performed. In his “Incident Report” he attributed the performance by him of the incorrect operation to a lack of clarity in the consent form. I can see no lack of clarity. Dr. Al Orafi actually underlined “upper frenulum”. That would have been obvious to any person who looked at the consent form.
Nor was there any evidence that the surgeon, the anaesthetist, or any other person in the theatre at the time of the first operation had read Professor Corbally’s handwritten note before the operation. It was for this reason that the concession which Mr. Grant eventually made was couched in terms of an “assumption” that no-one else involved in the case had read the outpatient notes.
But this assumption was subsequently borne out in evidence.
Accordingly, the actual history of the case demonstrates that Professor Corbally was originally pursued on the basis that the erroneous (and, I might add, obviously erroneous) entry in the outpatient notes had caused the “chain of events” which led to the subsequent performance of incorrect surgery. But this was shown to be patently incorrect. This confusion was due to a serious logical error expressed in the maxim, post hoc, ergo propter hoc. It took some time to realise that there were other factors at work. I reiterate that this was not the fault of Mr. Grant who knew nothing about the facts except what he was told. But this confusion on the part of the Medical Council when corrected, gave rise to the necessity to argue that there was no need to show any consequence following from the single error which Professor Corbally always admitted, or to establish any level of “seriousness”, and specifically any adverse consequence to the patient.
The evidence in this case certainly established that Professor Corbally was working under very considerable pressure in attempting to discharge his very numerous surgical commitments and his even more numerous non-surgical duties. No doubt, in one degree or another, similar levels of pressure were experienced by the other professional staff. The evidence also established that although the hospital operated a policy of a “surgical pause”, (a five minute break before a new surgical procedure was commenced in order to check or double check that the surgeons were about to perform the correct procedure, on the correct patient, and at the correct site), this simply did not work in the present case. The immediate cause of this, as the learned President found, was the failure of the computerised admission system to register the full description of the operation inputted by Professor Corbally. But this does not explain why the surgical team did not become aware of the Senior House Officer’s unmistakable indication on the consent form that it was the upper labial frenulum which was to be divided, which itself followed the mother’s insistence that this was so.
There was no allegation against Professor Corbally that he undertook an excessive workload (although undoubtedly the workload was very considerable) or that he was in any way responsible for the shortcomings in the hospital’s procedures or in the operation of the surgical pause system. I wish to say that, where no specific allegation of these sorts is made, it is not proper to increase the obligations on the medical practitioner such as Professor Corbally by reference to any systemic or other deficiency in hospital procedures. To do so would tend to make the individual practitioner responsible for matters over which he or she had no power or responsibility, and about which he or she may well have no knowledge. But this sort of attribution seems to be the basis of the finding against Professor Corbally in respect of allegation 8.
Remarkable as it seems the Medical Council’s expert Mr. Grant, was not given to understand that the hospital’s computer system would not take notice of the words “upper frenulum”. He acknowledged this at several places in cross-examination but most saliently at the bottom of p.55 of the transcript of Day 2; and on to the following page:
This appears to me to be a very unfortunate state of affairs, and one that did not become apparent until the expert witness was cross-examined on behalf of Professor Corbally. In closing submissions it was asserted (Day 4, p.107) that Mr. Grant had not been provided with a copy of the Hospital Report, which will shortly be quoted, and which would have made the relevant features of the computer system quite clear.
Again, it is instructive to consider the case which the Medical Council were first disposed to make against Professor Corbally in this regard. Allegation 2, withdrawn by the Registrar of the Medical Council but only late in the day, claimed that Professor Corbally himself had inputted an incorrect description of the procedure into the computerised admission and TMS (Theatre Management System). This allegation was inconsistent with the known facts. Professor Corbally attempted to input the description “tongue tie upper frenulum” but the system refused to accept it. This, in fact, is acknowledged in the hospital’s “report following the review of an incident”, which was proved at the Inquiry. This report said, at p.5:
The documentation and recording systems used to book, admit, and list the required procedure all supported and in fact required the use of the term Tongue Tie. As previously discussed this is due to the practice in general surgery of describing any frenectomy in this way. In fact this led to this terminology being incorporated in the TMS at the design stage.
This fully supports the finding of the learned President that:
Difficult as it is to believe, the system as it then operated in Crumlin had only one code for all frenulum dissection – all three types being described as ‘tongue tie’. That being so the operation was inputted by the system as ‘tongue tie release’ without the addition of the words ‘upper frenulum’.
In the opening of the case against Professor Corbally by Mr. J.P. McDowell it was acknowledged (17th September, 2012, p.11) that:
The words that Professor Corbally inserted on that admission card i.e. the words (upper frenulum) did not migrate onto the patient administration system. So what was left on the patient administration system was the words ‘tongue tie release’.
Later on the same day Mr. McDowell examined Mr. Grant on this topic. He explained the limitations of the hospital’s computer system. Mr. Grant, who seems not previously to have known of the system’s limitations, said at p.138:
I am puzzled. Tongue Tie is the wrong description and so is rectal biopsy above it. So why would you choose one wrong as opposed to another wrong? I am a bit puzzled what is expected of the surgeon? Are they supposed to choose the least wrong?
Subsequently, at p.139 Mr. Grant asked the question of Mr. McDowell:-
Is there no space at all for something that is completely unspecified in the hospital system? So some patients, and in paediatrics there are probably more than in adult practice, someone hasn’t thought of all the operations that can be done on people. So someone will come in with an operation that is not labelled. I am asking: the hospital in their system has no way of permitting the unspecified procedure?
But against that background the Committee made a finding adverse to Professor Corbally on that basis that it:
had regard in particular to the evidence that the procedure was rarely carried out in [Crumlin] and that the surgical booking/coding system was known to be incapable of coding a procedure such as division of upper lip frenulum. In those circumstances Professor Corbally had a particular responsibility to ensure that all necessary precautions were taken to ensure that the patient received the correct surgery. His failure to do so, by relying on systems known or suspected to be flawed constitutes poor clinical judgment.
The use of the passive voice is significant in the above wording.
This finding, remarkably, actually seeks to increase the obligation on Professor Corbally by reason of the shortcomings of the hospital’s computer system. There is no charge alleging that he knew the system was defective and that, accordingly, his addition of the term “upper frenulum” was a pointless exercise, as it would not “migrate” to the Patient Administration System.
There was evidence before the Committee, which does not appear to me to have been contradicted, that it was usual for a surgeon handing over a particular procedure to be done by another surgeon, to describe the procedure in terms of the theatre list. In this case, that description was dictated by the admission note, as inadequately entered in the hospital’s records. It is also noteworthy that Mr. Tareen did not complain in evidence as to Professor Corbally’s communication with him, when the relevant procedure was handed over to him.
Accordingly, this is a case where a very distinguished and professional surgeon erroneously described a proposed surgical procedure in his handwritten outpatient note. It is quite clear on the evidence that neither the respondent, nor anyone else in the case was in any way confused or misled by this very simple error. This is demonstrated by the fact that in Professor Corbally’s note to the general practitioner and in his admission note, the procedure was correctly described. It must also be said (as Mr. Grant agreed) that the error was an obvious one: any person, certainly any medical person, reading the note and being aware that there is, anatomically, no “upper lingual frenulum” would be aware that a slight error had been made, of the sort that we are all accustomed to hearing every day in speech and to correcting mentally, or by enquiry. Thus, at the simplest level, a person well known to the speaker may be addressed by an incorrect name. This is often called a “slip of the tongue”. Professor Corbally made a slip of the pen. He did so in a handwritten note made in the context of great pressure: he carried an enormous workload and had been on call for five of the preceding seven nights.
To say this is not to deny that the error made was unfortunate. In an ideal world no-one would make any errors, least of all a person with the responsibilities of Professor Corbally. But we do not live in an ideal world. Errors are made every day. Usually, as in this case, they have no consequence, or certainly no serious or lasting consequence. It would be a very confrontational, legalistic, and defensive world indeed if a person in any occupation could be put on risk of his livelihood and his irreproachable reputation because it could be proved he had made some error even (if the Medical Council is correct), one which is not serious. Any work environment where that rule prevailed is one whose work would be done very slowly, indeed unnaturally so, and staffing levels would have to be correspondingly greater than at present.
For the reasons set out in this judgment, I would uphold the order of the learned President. Specifically, I consider that before a medical practitioner can be subjected to the extremely threatening ordeal of a public hearing before the Medical Council, either for professional misconduct, or for poor professional performance, there must be reason to believe that what can be proved against him is something of a serious nature. As I have said earlier in this judgment there may be myriad matters which are plainly not “serious” in the sense I have explained but which may legitimately aggrieve a patient or his or her relatives. But the statutory authority for the governance of the Medical profession must be capable of saying to such a person that a complaint, perhaps legitimate in itself, will not proceed to the point of an inquiry before a Fitness to Practice Committee unless it is, in its nature, a serious act or omission.
There are, both in the 2007 Act, and elsewhere, various private non-accusatorial, non-adversarial strategies available to ensure high professional standards. This reflects the fact that not every shortcoming, and in particular not every “once-off” shortcoming must either be ignored entirely or, if noticed at all, be the subject of a full hearing before a Fitness to Practise Committee.
I believe that, on a correct construction of the statute, there is indeed a threshold of “seriousness” to be met before a prima facie case for an inquiry before the Medical Council is made out. I believe that this is the position in law, on the basis set out above. I consider that only that interpretation provides a medical practitioner with adequate protection of those constitutional rights, which he or she enjoys in common with every other citizen, to good name and to earn a livelihood in his or her profession. I also believe, for the reasons given above that when Dáil Eireann enacted the Act of 2007 it had been told that “case law” meant that there was in fact such a threshold of seriousness or significance. I also believe, as will be particularised below, that the legal assessor to the Fitness to Practise Committee advised along the lines that there was indeed such a threshold, a requirement of seriousness. The Fitness to Practise Committee, as they were entitled to do, did not follow this advice but they might have been well advised either to do so, or else to notify the parties that they were going to decide the case on some other view of the law. Nor did the Committee tell Mr. Corbally or his advisors that they did not propose to follow this advice, which they were under a legal obligation to do. This is further discussed below.
Legal Assessor’s advice.
In the course of the Reply on behalf of the Medical Council, counsel conceded that it was improbable that the Committee had followed the legal assessor’s advice on the question of whether there was a seriousness threshold to be met. There is no doubt that, following the judgment in McManus v Medical Council (High Court, unreported 14th August, 2013) and the Fitness to Practise Committee is entitled, if it wishes, to disregard the advice of its own legal assessor. This was indeed conceded in that case: the judgment notes at p.19:
While it was accepted that the Committee was nonetheless free to reject the advice of the legal assessor, it was necessary for the first respondent [that is, the Fitness to Practise Committee] to give clear and cogent reasons for doing so.
The reason for this is fairly obvious and it arises from the nature of the role played by legal assessor’s advices in a Medical Council hearing. In Nwabuze v General Medical Council  1 WLR 1760 Lord Hope, speaking of the advice of the General Medical Council legal adviser said that:
fairness requires that the party should be afforded an opportunity to comment on that advice and that the Committee should have an opportunity to consider their comments ....
This passage was approved by Kelly J. in Prenderville v The Medical Council  3 IR 122. It was to facilitate this opportunity to comment that it was held that the advice of the legal assessor should be given in public. This, in turn, follows the decision of Blayney J. in State (Polymark Ireland Ltd). v The Labour Court  ILRM 357. At p.363 of the Report Blayney J. said as follows:
It might be of assistance for the future .... if I were to indicate what procedure the Labour Court could safely adopt if similar circumstances arise again. They should first inform the parties of their intention to ask the registrar for legal advice; then, having obtained the advice, they should at a resumed hearing inform the parties of their nature of the advice they had obtained and give the parties an opportunity of making submissions in relation to it and, finally, having heard the submissions, the members of the Court should on their own and without further reference to the registrar arrive at their own conclusions on the issue. If this procedure had been adopted in the present case, no possible objection could have been raised by [Polymark].
It has been established, certainly on the balance of probability, that the Fitness to Practise Committee did not follow the legal assessor’s advice which, it appears, was along the lines set out in Calhaen. Mr. J.P. McDowell, Solicitor, who had carriage of the case against Professor Corbally does not appear to have objected to that advice but the Committee, by a majority, seemed to have decided to disregard it.
I think that the parts of the legal assessor’s advice which counsel had in mind in conceding that it was improbable the Committee had followed the advice are two in particular. At p.66 of the transcript of Day 4, Mr. Woulfe S.C. said:
What I am really saying is that everybody makes mistakes of course in all walks of life, and everybody will make a mistake and you could use the kind of parlance almost I won’t say entitled to make a mistake but it is a fact of life that mistakes are made or errors made but whether or not a one off by a medical practitioner is something outside of what can reasonably be expected, it seems to me that that depends upon the circumstances in any given case and the seriousness of the once off error in any given case. That is ultimately a matter for the Committee to decide.
Later, in advising the Committee in the context of the Calhaen case, cited above, Mr. Woulfe said, at pages 67/68, having quoted Calhaen:
I am not sure at the end of the day that that is ultimately very much different from the advice that I have just given above. It may come back around to very much the same thing. I would query perhaps the word ‘very serious’ [from Jackson J’s fourth principle], I think that may be unduly limiting the discretion and competence of this Committee. I think it must be a serious single instance because obviously a very minor error could not in itself be poor professional performance. It must be an error which is serious in some way.
In my view, the Committee are entitled to disregard the advice proffered by the legal assessor. This seems well established and was indeed admitted in the case of McManus. But that does not end the matter.
In McManus’s case, it was alleged against a junior doctor that he was guilty of professional misconduct by altering certain notes. The alterations to the notes were admitted and the circumstances of the alteration were fully set out by the doctor. The Medical Council decided to call an expert in the field in question (psychiatry) on the question of whether the alterations which were made constituted professional misconduct. However, no doubt to the surprise of the Registrar, the evidence offered by the expert “was undoubtedly exculpatory to a significant degree of the applicant insofar as his reasons for making the alterations to the notes was concerned”, as the High Court found.
The learned trial judge questioned whether expert evidence was required at all but went on to say:
However, the decision of the Committee was to call such an expert. Having chosen that course, it seems to me that the Committee must accept the consequences of the expert not ‘swearing up’. It was hardly fair or appropriate to reject or ignore the views of its own expert and to elevate to that status for the purpose of its decision the evidence offered by [the complainant, who was a medical practitioner].Whatever her qualifications and experience, [the complainant] was the complainant in the case and it had never been intimated that the Committee would regard her as anything other than a witness as to fact.
These considerations led the judge to conclude as follows:
In the instant case, while I am satisfied that the applicant in altering the medical notes did something wrong (and for which he accepts responsibility) he may also have been disadvantaged to an appreciable degree by the procedures adopted by the Committee in arriving at and justifying its decision. In those circumstances I believe the decisions arrived at by the respondents should be quashed.
A subordinate theme in McManus was that the legal assessor had strongly (and understandably, having regard to the evidence of the expert) advised the Fitness to Practise Committee that there was no case against the doctor. This advice had been ignored. The High Court did not ground its eventual resolution of the case in favour of a doctor on this ground because it said that the legal assessor’s advice was not about law but about the facts of the case, which was wholly within the scope of the Fitness to Practise Committee. This is a thin line: the question of whether the evidence establishes a prima facie case is often a mixed question of fact and law.
In the present case, however, there was no statement by the Fitness to Practise Committee of “clear and cogent reasons” for departing from the advice of the assessor, which related to matters of law. Accordingly, the representatives of Professor Corbally never had an opportunity to comment on the basis on which the Committee were actually going to approach the question of whether poor professional performance had been made out. It appears to me that, if this ground stood alone, it might be sufficient to quash the decision. But the Medical Council were plainly anxious to have the question of whether or not there was a seriousness threshold for poor professional performance resolved and, in the public interests, it seemed better to end the uncertainty which plainly existed on that point.
I would dismiss the appeal and uphold the order of the learned President of the High Court.
I agree with the judgment of Mr Justice Hardiman on this matter, and wish to add only a few comments on matters which arose in the course of argument. I can fully understand why the parents in this case made a complaint about the treatment afforded to their child. It is important to remember that this case arose because a child who was due to have a simple surgical procedure had the operation carried out on the wrong frenulum. The child had to be readmitted so that the correct surgery could be carried out. Mercifully there were no other serious consequences, but the fact that a patient could be admitted to a busy hospital under the care of a number of medical professionals, and have the wrong operation carried out was, and ought to be, a matter of serious concern. It was entirely proper that it should be investigated. But the only person or institution who received disciplinary sanction was Professor Corbally. For the reasons so carefully and lucidly traced in the judgment of that Mr Justice Hardiman delivers today, Professor Corbally made a slip of the pen which, coincidentally, misdescribed the operation to be carried out, but which did not have any causal consequences in that it did not cause, lead to, or contribute to the wrong operation being carried out. Accordingly I agree with the characterisation of this error on behalf of the Medical Council as not “serious”. I also agree with both Mr Justice Hardiman and Mr Justice McKechnie that only a serious error or a series of errors (which may therefore be serious) can justify a finding of poor professional performance. I agree in particular that given the fact that these hearings are conducted in public, and findings are made public, that even the lowest sanction of admonishment can have devastating consequences for the career and livelihood of the individual concerned. It follows that in my view, for reasoning essentially similar to that set out in the judgment of Keane J in O’Laoire v Medical Council (27th of January 1995) that it was intended that such consequences should not be visited upon a petitioner other than in cases which passed a threshold of seriousness.
I do not however agree that serious should mean “very serious” or that it can be said that only conduct sufficiently serious to call in to question a doctor’s registration which means subjecting a doctor to the ultimate professional sanction of being struck off, is sufficient to justify a complaint or finding of poor professional performance under the Medical Practitioners Act of 2007. While I agree that the analysis in R. (Calhaem) v The General Medical Council  EWHC 2606, is helpful, it must be applied with some caution. In particular, while it may have been permissible in that case to seek to read back from the sanctions capable of being imposed, come conception of the conduct sufficient to merit such sanctions, it is important to bear in mind, that s.35D of the Medical Act of 1983 which was in issue in that case, only permitted striking out, suspension for up to 12 months, or the making of a registration conditional on compliance with requirements specified by the UK Fitness to Practise Panel. In such circumstances it may be correct to say as the General Medical Council in the UK has, that only alleged conduct which is capable of calling in to question the registration of a practitioner can be the subject of a complaint of deficient professional performance, since the sanctions all involve the registration of the individual and indeed their capacity to practice.
By contrast, s.71 of the 2007 Act while providing for cancellation, suspension, or the attachment of conditions to a registration, also provides for other and lesser penalties including censure and fine not exceeding £5,000, or admonishment, censure, or even advice, in writing. Accordingly it is not possible I think to read the 2007 Act as meaning that only conduct sufficiently serious to put registration in issue is covered by the Act: in my view the conclusion to be drawn from the statutory scheme, is that conduct which is sufficiently serious to merit public censure, admonishment or advice, may constitute poor professional performance. I do agree however, that even then, given the consequences for an individual, which as Hardiman J points out, may be life and career changing, that there is a seriousness threshold which, it was agreed in this case, correctly in my view, was not passed. The reasoning in O’Laoire is persuasive, but in any event must be taken to be approved by the Oireachtas since it adopted the same language for professional misconduct as had been interpreted in that case. Since as my colleagues observe no distinction is made in the statute between the sanctions for professional misconduct and poor professional performance, it seems to follow that the same threshold must apply. It does appear that the 2007 Act in this regard was not perhaps fully thought through, and neither entirely adopts the position in the UK (which might have many practical benefits given the professional exchange between the two jurisdictions) nor establishes a fully coherent and independent scheme of professional supervision and discipline. In the circumstances I entirely agree that the finding of the learned President should be upheld and the appeal in this regard dismissed.
I also agree that the failure to explain whether or not the Fitness to Practise Committee was departing from the legal assessor’s advice that there was a seriousness threshold, is a further ground to quash the decision. The significance of an absence of reasoning on a point of this importance is neatly highlighted by the particular facts of this case. Either the Fitness to Practise Committee accepted the advice of the legal assessor but nevertheless found (and contrary to the position now accepted by the Medical Council) that the conduct here was serious and merited sanction, or, it departed from that advice (erroneously as it now appears in the light of the decision of the High Court and this Court) and considered that an error itself not serious, could nevertheless amount to poor professional importance. There is even the possibility that different members of the committee could have come to different conclusions on this issue and yet agreed on the result. The Medical Council to which the report is directed, the profession generally, members of the public, and not least the individual concerned are entitled in my view to know how the Fitness to Practise Committee dealt with this issue, which might be central to the amount of confidence which any of those entities might have in the conclusion to which it came. Like Mr Justice Hardiman, I do not think it necessary to address here the question of resort to parliamentary debates as an aid to construction in this case: it was in my view proper to bring the parties attention to the precise reference, because the interpretation was said to represent the views of the Medical Council, one of the parties in the case which was contending for a different interpretation. In the circumstances I would dismiss the appeal.
William M. McKechnie J
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.
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.
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.
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.
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”.
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. 116 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.
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.
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
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, ....
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
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:
By majority the Committee was satisfied that this amounted to poor professional performance as:
A minority took the opposite view on the basis that the entry did not influence the booked hospital procedure.
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 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”.
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:
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.
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:
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.
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.
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  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”.
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.
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.
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.
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  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.
Although on notice, the Human Rights Commission did not participate in the proceedings in the High Court.
The Appellant’s Submissions
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.
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”).
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.
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  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.
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.
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.
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
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.
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.
There are several issues in this case, but I propose to concentrate on the following:-
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?
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?
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
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.
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.
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.
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.
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.
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
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:-
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.
Pharmacy Act 2007 (s. 35):
No definition of poor professional performance.
Building Control Act 2007 (s. 57):
Definition of both professional misconduct and poor professional performance.
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.
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:
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.
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”.
In 1894 (Allinson v General Council of Medical Education and Registration  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  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.
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.
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  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.
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).
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:-
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.
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 (p. 108):-
The principle at (5) above should be seen as modified in light of that statement.
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.
It is only correct to point out that Kelly J., in Prenderville v The Medical Council  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
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.
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.
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).
As with the 1978 Act, there is no definition of professional misconduct but “poor professional performance” is defined as (s. 2):
.... 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;
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 (s. 71):-
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.
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.
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).
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.
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.
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.
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.
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.
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. 151 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
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.
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.
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  U.K.P.C. 10 and Sadler v General Medical Council  1 W.L.R. 2259 (“Sadler”) (para. 11)).
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”).
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.
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.
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.
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.
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 –
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.
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).
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.
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.
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.
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 (p. 2279):-
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.
At para. 39 of Calhaem, Jackson J. then sets out five principles as follows:-
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.
The following are the most material ones:
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.
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.
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.
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,
The rules under the 2007 Act are not remotely as detailed.
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.
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”
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.
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.
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.
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.
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.
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.
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.
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.
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.
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”?
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.
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.
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.
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.
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.
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.
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.
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.
Summary of Main Findings:
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.
This threshold applies whether the allegation be one of singularity or as involving more than one incident or activity.
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.
Evidently in the normal course of events, it will be more difficult to meet the test if there is but one incident alleged.
Conduct which can truly be described as trivial, minor or which can be classified as de minimis, will not qualify.
Whilst outcome, detrimental consequences or causative effect are not essential, where present will be factors for consideration.
Negligent acts or contractual breaches, may or may not qualify: circumstances and context will determine.
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.
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.
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.
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.
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.
In conclusion, as both the F.P.C. and the Medical Council proceeded on an erroneous basis in law, I would dismiss the appeal.
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