Corbally v Medical Council and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hardiman,O'Donnell J,Mr. Justice William M. McKechnie
• Judgment Date: 04 February 2015
• Neutral Citation: [2015] IESC 9
• Court: Supreme Court
• Docket Number: [S.C. No. 37 of 2014]
• Date: 04 February 2015

Corbally v Medical Council & Ors

Between/

MARTIN CORBALLY

Applicant/Respondent

and

THE MEDICAL COUNCIL, IRELAND AND THE ATTORNEY GENERAL

Respondent/Appellant

JUDICIAL REVIEW

BETWEEN

MARTIN CORBALLY

APPLICANT/RESPONDENT

AND

THE MEDICAL COUNCIL, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS/APPELLANTS

AND

THE HUMAN RIGHTS COMMISSION

NOTICE PARTY

[2015] IESC 9

Denham C.J.

Hardiman J.

O'Donnell J.

McKechnie J.

Dunne J.

The Chief Justice

[Appeal No: 37/14]

[037/2014]

THE SUPREME COURT

Professional ethics and regulation – Medical practitioner – Sanction – Medical Council decision to sanction for poor professional conduct – Judicial review of decision – Medical Practitioners Act 2007

Facts: The respondent, a professor of surgery, had been sanctioned by the Appellant for what it deemed to be poor professional performance. The respondent had challenged this decision by seeking judicial review in the High Court. The High Court had found for the respondent, and the appellant now sought to appeal.

Hardiman J, Denham CJ, O'Donnell Donal J and Dunne J concurring, stated that the relative lightness of the sanction, i.e. an admonishment, had resulted in the respondent not being able to appeal on the merits of the decision, but rather had meant that the method of judicial review was appropriate. The Court was satisfied that the Medical Practitioners Act 2007 was not intended to make relatively non-serious mistakes subject to sanction as this had not been explicitly stated by the Act. The consequences of the sanction in this case were disproportionate to the level of failing in the matter by the Respondent, and the Court was satisfied that that a 'seriousness' threshold applied in respect of poor professional performance. This threshold was not met in the instant case, and the appeal would be dismissed.

1 JUDGMENT of Mr. Justice Hardiman delivered the 4th day of February, 2015.

2 Judgment of O'Donnell J delivered the 4th of February, 2015.

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

4 Judgment delivered by Hardiman, J. O'Donnell, J. & McKechnie, J.

5 1. 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 14 ^th November, 2013 (order perfected on 14th January, 2014).

6 By this order the High Court granted the applicant (Professor Corbally) an Order of Certiorari quashing the decision of the Medical Council of the 6 ^th 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 6 ^th October, 2012, being a finding of poor professional performance.

7 2. The High Court also made certain ancillary and consequential orders, unnecessary to consider at this stage.

Factual background.

8 3. 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.

9 4. 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.

10 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.

11 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.

12 5. 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.

13 6. 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 30 ^th 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.

Reliefs sought.

14 7. 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).

15 8. 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.

16 9. 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...