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Corbally -v- The Medical Council & Ors, [2013] IEHC 500 (2013)
The meaning of “Poor Professional Performance” in the light of the judgement of the High Court in Corbally v Medical Council.
The President of the High Court delivered judgment in the above case on 14 November 2013, thereby providing the first judicial interpretation of “poor professional performance” per the Medical Practitioners Act 2007 (the “2007 Act”).
Professor Corbally, a Consultant Paediatric Surgeon, issued judicial review proceedings arising from the decision of the Fitness to Practise Committee of the Medical Council finding him guilty of poor professional performance and the subsequent decision of the Medical Council imposing a sanction of admonishment against him in respect of those findings.
In quashing the findings of poor professional performance (which related to his involvement in a frenulum release procedure carried out on a child at our Lady’s Children’s Hospital, Crumlin, on the 30 April, 2010), the High Court considered the statutory definition per section 2 of the 2007 Act as follows:
“…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 be reasonably expected of medical practitioners practicing medicine of the kind practiced by the practitioner.”
The Court had regard to the legislative framework in the UK and a number of decisions of the English Courts, in particular the decision of R. (Calhaem) v General Medical Council [2007] E.W.H.C. In relying on the principles outlined by Jackson J. at paragraph 39 of his judgment in Calhaem, the President held that:
(a) “Poor professional performance” is conceptually separate from both negligence and misconduct. It connotes a standard of professional performance which is unacceptably low and which has (save in exceptional circumstances) been demonstrated by reference to a fair sample of the registrant’s work,
(b) A single instance of negligent treatment, unless very serious indeed, would be unlikely to constitute “poor professional performance”.
In adopting the above view, the President had regard to the fact that any finding of poor professional performance under the 2007 Act would result in the imposition of a sanction and also noted that there is no right of appeal when the sanction of admonishment is imposed. The President therefore took the view that it was appropriate “to imply or import a requirement that a single lapse or offence must achieve a threshold requirement of being “serious”.
The President then went on to consider whether a single error in writing up patient notes could constitute poor professional performance as outlined above. While the President held that "a single slip or error of a minor nature” would not normally constitute poor professional performance, he acknowledged that to “exclude a grave error, albeit one occurring on a single occasion” would be to undermine the purpose of the 2007 Act and would not be in the public interest or indeed the interest of the medical profession.
In considering whether the threshold had been met in this case, the President also had regard to the issue of causation. The President concluded that a “non-causative lapse must be seen as a less serious error in character than one which causes damage.” This is a significant development as to date, most regulatory bodies have tended to focus on whether a practitioner has failed to meet the expected standards of conduct or performance, irrespective of whether any damage actually results.
What does the judgment mean for Professional Regulators?
The judgment confirms that:
- Poor professional performance connotes a standard of professional performance which is unacceptably low and which has (save in exceptional circumstances) been demonstrated by reference to a fair sample of the registrant’s work.
- A single incident can amount to poor professional performance provided it is “very serious indeed”. Although it may be that a lesser standard of seriousness is required given the references to “serious” and “grave” in other parts of the judgment.
Arising from the judgment, Regulators will now have to reflect on issues such as:
- What constitutes a “fair sample” of a registrant’s work?
- Is there a significant difference between “professional misconduct” and “poor professional performance” in respect of “single incident” complaints in light of this judgment?
- The extent to which causation may be a determinative factor in establishing whether a failure is “very serious indeed”.
For further information please contact the Public and Regulatory Law team at Mc Dowell Purcell
Remember that this article is for information purposes only and does not constitute legal advice. Case law is fact specific and readers should understand that similar outcomes cannot be assumed. Specific advice should always be taken in given situations.