Supreme Court dismisses appeal against quashing of Medical Council's admonishment for poor professional performance.

THE SUPREME COURT

[2015] IESC 9

[Appeal No: 37/14]

Denham C.J.

Hardiman J.

O’Donnell J.

McKechnie J.

Dunne J.

Between/

MARTIN CORBALLY

Applicant/Respondent

and

THE MEDICAL COUNCIL, IRELAND AND THE ATTORNEY GENERAL

Respondent/Appellant

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

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 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.

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

Factual background.

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.

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.

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.

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.

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 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.

Reliefs sought.

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).

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.

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 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.

Gravity.

10. 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).

11. 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.”

A concession.

12. 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.

13. 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:

“THE FACTS

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”. (Emphasis added)

14. 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.

15. 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.

16. 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.

17. 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:

“S.35C(2):

A person’s fitness to practise shall be regarded as ‘impaired’ for the purpose of this Act by reason only of –

(a) Misconduct;

(b) Deficient professional performance”.

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:-

“(a) Professional misconduct, and

(b) Poor professional performance.”

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) an advice or admonishment, or a censure, in writing;

(b) a censure in writing and a fine not exceeding €5,000;

(c) the attachment of conditions to the practitioner’s registration including restrictions on the practice of medicine that

may be engaged in by the practitioner;

(d) the transfer of the practitioner’s registration to another division of the register;

(e) the suspension of the practitioner’s registration for a specified period;

(f) the cancellation of the practitioner’s registration; and

(g) a prohibition from applying for a specified period for the restoration of the practitioner’s registration.”

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.

18. 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.

19. 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.

Some cases.

20. 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 [1970] 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 [1984] 1 QB 750 where the

corresponding term was “infamous conduct in a professional respect”.

He also cited Felix v. General Dental Council [1960] 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.

21. 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 [1987] 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…”.

22. 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:

(1) Conduct which is ‘infamous’ or ‘disgraceful’ in a professional respect is ‘professional misconduct’ within the meaning of

s.46(1) of the [1977] Act.

(2) Conduct which would not be ‘infamous’ or ‘disgraceful’ in any other person, if done by a medical practitioner in relation

to his profession, that is, with regard either to his patients or to his colleagues, may be regarded as ‘infamous’ or

‘disgraceful’ conduct in a professional respect.

(3) ‘Infamous’ or ‘disgraceful’ conduct is conduct involving some degree of moral turpitude, fraud or dishonesty.

(4) The fact that a person wrongly but honestly forms a particular opinion cannot of itself amount to infamous or

disgraceful conduct in a professional sense.

(5) Conduct which could not properly be characterised as infamous or disgraceful, and which does not involve

any degree of moral turpitude, fraud or dishonesty, may still constitute ‘professional misconduct’ if it is conduct

connected with his profession in which the medical practitioner concerned has seriously fallen short, by

omission or commission, of the standards of conduct expected amongst medical practitioners.

(6) I do not attach any significance to the fact that the adjective ‘serious’ does not appear before ‘professional

misconduct’ in s.46(1)(8) and (unlike the provision under consideration in Doughty). Only conduct which seriously falls

short of the accepted standards of the profession could justify a finding by the professional colleagues of a doctor of

‘professional misconduct’ on his part.

(7) In considering how these principles should be applied to the facts of the present case, the standards applicable in the

medical profession in this country, as laid down in official publications and discussed by various witnesses are clearly of

importance and are considered in more detail in a later section of this judgment…”.

It is therefore clear that conduct alleged to constitute “professional misconduct” must meet a threshold of “seriousness”: see para. 5

above.

23. 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 [2007] 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”.

24. 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”.

(Emphasis supplied)

25. 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”.

26. 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.

27. 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:

(1) Mere negligence does not constitute ‘misconduct’ within the meaning of s.35C(2)(a) of the Medical Act 1983.

Nevertheless, and depending on the circumstances, negligent acts or omissions which are particularly serious may amount

to ‘misconduct’.

(2) A single negligent act or omission is less likely to cross the threshold of misconduct than multiple acts or omissions.

Nevertheless, and depending on the circumstances, a single negligent act or omission, if particularly grave, could be

characterised as ‘misconduct’.

(3) ‘Deficient profession performance’ within the meaning of s.35C(2)(b) is conceptually separate both from negligence

and from misconduct. It connotes a standard of professional performance which is unacceptably low and which (save in

exceptional circumstances) has been demonstrated by reference to a fair sample of the doctor’s work.

(4) A single instance of negligent treatment, unless very serious indeed, would be unlikely to constitute ‘deficient

professional performance’.

(5) It is neither necessary nor appropriate to extend the interpretation of ‘deficient professional performance’ in order to

encompass matters which constitute ‘misconduct’.”

28. 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.

Parliamentary material.

29. 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”.

(Emphasis supplied)

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.

30. 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…”.

31. 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.”

32. 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”.

33. The Minister continued:

“In his decision in O Laoire v. The Medical Council on 27 January 1995 Mr. Justice Keane stated:

‘Conduct which could not properly be characterised as ‘infamous’ or ‘disgraceful’ and which does not involve any degree of

moral turpitude, fraud or dishonesty may still constitute “professional misconduct” if it is conduct connected with his

profession in which the medical practitioner concerned has seriously fallen short, by omission or commission, of the

standards of conduct expected amongst medical practitioners’.”

34. “Mr. Justice Keane also stated:

‘Only conduct which seriously falls short of the accepted standards of the profession could justify a finding by the

professional colleagues of a doctor of professional misconduct on his part’.” (Emphasis added)

“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.”.

35. The foregoing passage appears in the record of the Dáil debates for the 20th March, 2007, Vol. 634, No. 5.

At the end of the passage quoted above there is the notation:

“Amendment, by leave, withdrawn”.

36. 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”.

37. 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.

38. 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.

39. 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 [1996] 1 I.R. 565 and Crilly v. Farrington

[2001] 3 I.R. 251 which consider the admissibility of legislative history as an aid to construction, or to resolve any tensions between

them.

40. 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. See para. 15 above.

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.

41. 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.

42. We have already seen (para. 12 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.

43. 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 para. 4 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:

“Report relating to incorrect surgery”.

(Emphasis added)

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”. And:

“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:

“Q. from a reading of what you said in your report it’s not apparent that you believe outcome to be irrelevant, as you said

yesterday, would you accept that?

A. I accept that, yes.”

Later, at p.11, Q.21 the following occurs:

Q. If anyone had read the outpatient notes, they would know that there was a transcription error there somewhere; isn’t

that right?

A. I think so, yes.”

And a little later:

Q. So anyone who looked at the outpatient department notes would know there was something wrong with it?

A. Yes.”

44. 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”.

(Emphasis supplied)

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.

45. 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.

46. 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.

47. 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:

“Q. You didn’t know then at the time, when you prepared your report, you did not understand the way the hospital

system had operated?

A. No, but I did understand what was written in the outpatient note and I understood what was sent to me that was

written on the card, but I didn’t understand the computer programme, no, correct.

Q. No, and you did not understand therefore that the error in the theatre list was not at all attributable to Professor

Corbally’s actions?

A. No, I did not.”

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”.

(Emphasis added)

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’.”

(Emphasis added)

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?

(Emphasis added)

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?”

(Emphasis added)

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.” (Emphasis added)

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.

48. 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.

49. 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.

50. 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.

51. 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.

52. 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 [2000] 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 [2008] 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 [1987] 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].”

53. 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.”

54. 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.

55. 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.

56. I would dismiss the appeal and uphold the order of the learned President of the High Court.