Ireland: ‘Slip Of The Pen’ Did Not Warrant Finding Of Poor Professional Performance

Last Updated: 17 March 2015
Article by Joanelle O’Cleirigh and Orla Keane

In 2011, Professor Martin Corbally saw a two and a half year old girl and recommended a minor surgical procedure to stop the frenulum (soft tissue fold) on her top lip from catching. While writing his outpatient notes following the appointment, he referred the girl for surgery to correct an 'upper lingual frenulum' instead of an 'upper labial frenulum'.

When booking the girl in for the procedure, Professor Corbally correctly described the procedure as 'tongue tie (upper frenulum)'. The patient administration system in use at the time required all frenula dissections to be described as 'tongue tie'. It did not allow for the words 'upper frenulum' to be entered into the system, with the result that the procedure was referred to simply as a 'tongue tie'.

On the day of the surgery, Professor Corbally was called away to attend to another patient and he delegated the surgery, by reference to the incorrect description on the theatre list, to a specialist registrar. The specialist registrar performed a tongue tie operation. The error was discovered after the surgery and the correct procedure was performed on the same day. The girl made a full recovery and suffered no ongoing disability, but her parents made a complaint of poor professional performance against Professor Corbally.

COURT FINDS ALLEGATIONS MUST BE OF A SERIOUS NATURE

A Medical Council Fitness to Practise inquiry ensued. The case ultimately made its way to the Supreme Court, where the judges were asked to consider the meaning of the term "poor professional performance", as used in the Medical Practitioners Act 2007. In a decision delivered on 4 February 2015, the Supreme Court held that the words imply some level of seriousness and that before a medical practitioner can be subjected to a public hearing before the Medical Council, the allegations against him must be of a serious nature.

The decision is not only relevant to doctors and the medical profession; it also impacts on other healthcare professionals, including nurses and pharmacists, and the bodies tasked with regulating their fitness to practise.

BACKGROUND

Following the complaint by the girl's parents, the Medical Council made a finding of poor professional performance against Professor Corbally and imposed a sanction of admonishment. As a result of this finding, Professor Corbally endured significant adverse publicity.

Professor Corbally sought a review of the Medical Council's decision in the High Court. The President of the High Court was satisfied that Professor Corbally's initial error could not, on any reasonable or rational basis, be said to have caused the subsequent damage. He considered that the real problem lay with the systems in operation in the hospital at the time. He held that there is an implied requirement in the 2007 Act that a single lapse or error must meet a 'threshold of seriousness' before it can form the basis of a finding of poor professional performance. As the threshold was not met in this case, the High Court held that the Medical Council's decision should be quashed.

THE FINAL SAY

The Medical Council appealed the High Court's decision to the Supreme Court, disputing the necessity to meet a threshold of seriousness. A five-judge Supreme Court dismissed the appeal and upheld the High Court decision.

After having examined the relevant Irish and English case law, Hardiman J, who delivered the judgment of the majority, held that only conduct which represents a serious falling short of the expected standards of the profession can justify a finding of poor professional performance, 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. He noted that a threshold of seriousness is attached to the equivalent charge of deficient professional performance in England and that the respective systems of medical regulation bear many similarities. He considered that if it had been the intention of the Oireachtas to punish non-serious failing by a doctor, it would have used explicit language to this effect in the 2007 Act.

Hardiman J characterised Professor Corbally's error as a "slip of the pen", which had been made in the context of great pressure. He stated that 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... one which is not serious."

REMAINING UNCERTAINTIES

In the course of his judgment, Hardiman J referred favourably to R (Calhaen) v The General Medical Council, a case in which the English Court of Appeal held that, unless very serious, a single instance of negligent treatment is unlikely to constitute deficient professional performance and that deficient professional performance must be demonstrated by reference to a fair sample of a doctor's work. However, Hardiman J stopped short of finding that this also reflects Irish law. The Irish position on these two issues therefore remains unclear. McKechnie J rejected the fair sample test and any attempt to introduce a very serious threshold for once-off errors, and O'Donnell J agreed, in principle, that a serious error (rather than a very serious error) may ground a finding of poor professional performance.

WHAT THIS MEANS FOR REGULATORY BODIES

It is now clear that before a medical practitioner can be subjected to a public hearing before the Medical Council for poor professional performance, the allegations against him must be of a serious nature. This principle applies equally to other professionals, including nurses and pharmacists, who may face similar charges.

Regulatory bodies dealing with allegations of 'poor professional performance' must now take care to ensure that any allegation against a member meets the threshold of seriousness before proceeding to an inquiry. This may mean that fewer complaints will get past the initial stage, but as Hardiman J stated, regulatory bodies 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 of grounding an allegation of misconduct or poor professional performance."

This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.

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