Martin Corbally v Medical Council and Others

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 14 November 2013
• Neutral Citation: [2013] IEHC 500
• Judgment citation (vLex): [2013] 11 JIC 1403
• Court: High Court
• Date: 14 November 2013

[2013] IEHC 500

THE HIGH COURT

[No. 1028 JR/2012]

Corbally v Medical Council & Ors

JUDICIAL REVIEW

BETWEEN

MARTIN CORBALLY

APPLICANT

AND

THE MEDICAL COUNCIL, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

THE HUMAN RIGHTS COMMISSION

NOTICE PARTY

MEDICAL PRACTITIONERS ACT 2007 PART VIII

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)

MEDICAL PRACTITIONERS ACT 2007 S71(A)

MEDICAL PRACTITIONERS ACT 2007 S2

MEDICAL PRACTITIONERS ACT 2007 S69

MEDICAL PRACTITIONERS ACT 2007 S70

MEDICAL PRACTITIONERS (AMDT) ACT 2011 S12

MEDICAL PRACTITIONERS ACT 2007 PART IX

MEDICAL PRACTITIONERS ACT 2007 S71

MEDICAL PRACTITIONERS ACT 2007 S74

MEDICAL PRACTITIONERS (AMDT) ACT 2011 S17

R (CALHAEM) v GENERAL MEDICAL COUNCIL 2007 AER (D) 300 (OCT) 2007 EWHC 2606 (ADMIN)

KRIPPENDORF v GENERAL MEDICAL COUNCIL 2001 1 WLR 1054 59 BMLR 81 2000 AER (D) 2041

O'LAOIRE v MEDICAL COUNCIL UNREP KEANE 27.1.1995 2000/21/7913

MEADOWS v MIN FOR JUSTICE & ORS 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3

EFE & OLUKAYODE v MIN FOR JUSTICE & ORS (NO 2) 2011 2 IR 798 2011 2 ILRM 411 2011/20/4992 2011 IEHC 214

O'KEEFFE v BORD PLEANALA & O'BRIEN 1993 1 IR 39 1992 ILRM 237

PRENDIVILLE & MURPHY v MEDICAL COUNCIL & ORS 2008 3 IR 122 2007/51/10911 2007 IEHC 427

KEEGAN & LYSAGHT, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642 1987 ILRM 202

MCMANUS v FITNESS TO PRACTISE COMMITTEE OF THE MEDICAL COUNCIL & MEDICAL COUNCIL UNREP KEARNS 14.8.2012 2012/32/9485 2012 IEHC 350

BRENNAN v BORD ALTRANAIS UNREP DUNNE 20.5.2010 2010/5/1034 2010 IEHC 193

MEDICAL COUNCIL - RULES FOR THE MAINTENANCE OF PROFESSIONAL COMPETENCE (NO 2) SI 741/2011

MEDICAL PRACTITIONERS ACT 2007 PART XI

MEDICAL PRACTITIONERS ACT 2007 S91(1)

MEDICAL PRACTITIONERS ACT 2007 S91(7)

MILLS & ORS DISCIPLINARY PROCEDURES IN THE STATUTORY PROFESSIONS 2011 PARAS 2.51-2.63

MEDICAL ACT 1983 S36 (UK)

MEDICAL (PROFESSIONAL PERFORMANCE) ACT 1995 S1 (UK)

MEDICAL ACT 1983 (AMDT) ORDER 2002 SI 3135/2002 (UK)

MEDICAL ACT 1983 S35C(2) (UK)

High Court – Professional practice - Medical negligence - Disciplinary procedure - Poor professional practice - Typographical error - Administration - Order of certiorari - Delegation - Competence - Severity of error - Sanction of admonishment - Appeal procedure - Medical Practitioners Act 2007

Facts: These proceedings concerned an application for judicial review brought by the applicant to quash the decision of the first named respondent made on the 26th October 2012 to impose a sanction of admonishment on the applicant in relation to his professional performance in the context of a frenulum release procedure carried out on ‘patient X’ in Our Lady”s Children”s Hospital, Crumlin, on the 30th April 2010. The applicant also sought to quash the decision of the Fitness to Practice committee (‘FPC’) dated the 6 ^th October 2012, whereby the latter made three findings of poor professional performance on the part of the applicant. In that decision, it was found that the applicant had incorrectly described the procedure required for patient X in her medical records as excision of “upper lingual frenulum”; that he delegated patient X”s surgery to another doctor in circumstances where he failed to communicate adequately or at all to that doctor the procedure to be performed on patient X; and that he failed to apply the appropriate standards of clinical judgment that could be expected from a surgeon with your experience or expertise.

The applicant argued that his error in incorrectly describing the procedure patient X was to undergo could not come within the definition of ‘poor professional performance’ as set out in s. 2 of the Medical Practitioners Act 2007 (‘the 2007 Act’) because that section clearly related to standards of competence and not, as in this case, a simple error in writing up medical notes. It was also argued that a typographical error could not justify a finding of poor professional performance from the FPC, especially in light of the fact that his overall abilities were not considered despite feedback analysis from peers and patients being available that characterised his performance of practical and technical procedures as outstanding. It was also argued that there must be some threshold established before a finding of poor professional performance is made. In that regard, it was said that the applicant”s error was not serious because there had been numerous opportunities to detect the error in the administrative process. Finally, it was argued that the delegation of the surgery was only done in circumstances of an emergency and assigned to a well qualified doctor who should have realised the error that had been made and performed the correct surgical procedure. It was said that none of the allegations, which were all admitted, could constitute a finding of incompetence.

Held by Kearns J that pursuant to the judgment in R. (Calhaem) v. General Medical Council [2007] E.W.H.C. 2606 (Admin,) poor professional performance was different from negligence or misconduct because it implied a standard of professional practice that was unacceptably low. Such a finding, therefore, required an analysis of a fair sample of the professional”s work, unless a single instance of negligence or misconduct was very serious. This threshold of severity was considered especially important because a sanction under s. 71(a) of the 2007 Act, such as the one imposed on the applicant, could not be appealed.

In regards to the applicant”s typographical error, it was held that there was nothing in s. 2 of the 2007 Act that meant that failure to keep correct medical records could not constitute poor professional performance. It was, however, found that the error could not be described as grave, and indeed it was clear that the applicant had booked the patient in for her operation using an accurate description of what was to be performed. Further, despite the finding of the FPC, it was found that the applicant had correctly diagnosed patient X, and the fact that he wrote a confusing note of diagnosis should have prompted further inquiry by others prior to the commencement of surgery. It appeared to the Court that the real problem in the case was the system in the hospital, which did not properly transcribe the applicant”s detailed description of the required procedure. For that reason, it was held that the applicant”s initial error was not causative of the subsequent damage and could, therefore, not be described as a serious enough error to justify a finding of poor professional practice. It was also held that the applicant”s delegation of the surgery to another doctor could not be described as poor professional performance because it had been an emergency situation and because the applicant had referred the doctor to the medical notes and theatre list. If these had been properly consulted, that doctor would have seen what the applicant had intended for patient X. The final finding was also quashed because it was said that it was repetitious of the other two findings.

1 JUDGMENT of Kearns P. delivered on the 14h day of November, 2013.

2 The applicant is a professor of medicine and a consultant paediatric surgeon who was working in Crumlin Children's Hospital in 2012 but who is now working in Bahrain. The application is brought by way of judicial review to quash the decision of the first named respondent made on the 26 ^th October, 2012, whereby the sanction of admonishment was imposed on the applicant in relation to his professional performance in the context of a frenulum release procedure carried out in Our Lady's Children's Hospital, Crumlin, on the 30 ^th April, 2010. The applicant also seeks an order of certiorari quashing the finding of the first named respondent's Fitness to Practise Committee (hereinafter "FPC") set out in its report dated the 6 ^th October, 2012, and notified to the applicant by letter dated the 26 ^th October, 2012, whereby the FPC purported to make three findings of poor professional performance on the part of the applicant.

3 Other claims for relief are detailed in the statement grounding the application for judicial review, including, in particular, claims that Part 8 of the Medical Practitioners Act 2007, insofar as it fails to provide the applicant with an appeal from the first named respondent's decision and/or the FPC findings, breaches certain constitutional rights of the applicant and is for that reason unconstitutional. A declaration is also sought pursuant to s. 5 of the European Convention on Human Rights Act 2003 that Part 8 of the Medical Practitioners Act 2007, insofar as it fails to provide the applicant with an appeal from the first named respondent's decision and/or the FPC findings is incompatible with the State's obligations pursuant to Article 6 (1) of the Convention itself.

4 By agreement between the parties, these claims of unconstitutionality and failure to comply with the requirements of the Convention were not proceeded with, pending resolution by this Court of the matters first outlined above.

THE FACTS

5 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.

6 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...