A "slip of the pen" by consultant paediatrician Martin Corbally should not have been the basis for his being subjected to the "extremely threatening ordeal" of a public inquiry by the Medical Council, the Supreme Court has said.
The five-judge court unanimously dismissed the Council’s appeal against the High Court’s quashing of a Council decision that Prof Corbally should receive an admonishment over “a once-off error”.
That related to a handwritten description of a surgical procedure on a two-year-old girl in 2010 in Crumlin Hospital which ultimately led to a finding of poor professional performance against the doctor.
The court said the law requires, for a medical professional to have to undergo a public inquiry, a threshold of “seriousness” must be met. It was neither fair nor just that someone like Prof Corbally was subjected to such an inquiry, with extensive publicity, some of which lacked fairness and moderation, Mr Justice Adrian Hardiman said.
It was not an adequate vindication of his constitutional right to his good name and was not what the Oireachtas expressed when it passed the Medical Practitioner’s Act 2007, under which the inquiry was held, he said.
The girl in the case required surgery on her upper lip, an “upper labial frenulum” procedure, as her top lip was catching, causing an ulcer and contributing to a gap in front of her teeth.
However, an incorrect “tongue tie” procedure was carried out by another doctor to whom Prof Corbally delegated the task after he was called to emergency surgery. Prof Corbally carried out corrective surgery shortly afterwards and the child made a full recovery.
The child’s parents complained to the Medical Council and a Fitness to Practise inquiry made a finding of “poor professional performance” against Prof Corbally which he strongly contested.
He took proceedings in the High Court which found that inaccurate wording on initial handwritten examination notes by Prof Corbally was not causative of the subsequent damage. The Council appealed to the Supreme Court and asked it to define the proper meaning poor professional performance in the 2007 Act.
Upholding the High Court decision, Mr Justice Hardiman said the Council had conceded during the appeal that, if it was necessary to prove behaviour by Prof Corbally which fell “seriously” short of the standard expected in order to establish there was poor professional performance, then it could not meet that test.
However, the Council denied the legislation required any seriousness threshold to be met, he said. Mr Justice Hardiman said, in order to find PPP, there must have been reason to believe what can be proved against Prof Corbally was something of a serious nature.
There may be a myriad of matters which are plainly not serious, but which may legitimately aggrieve a patient or their relatives, he said. The statutory authority governing the medical profession must be capable of saying that a complaint, although legitimate, will not proceed to the point of a fitness to practise inquiry unless it does involve a serious act or omission, he said.
There are a various other private non-accusatorial, non adversarial, strategies available to ensure high professional standards, he added.
A correct construction of the 2007 Act requires a threshold of “seriousness” to be met before a prima facie case for an fitness to practise inquiry is made out, he said.
The Fitness to Practise inquiry might have been well advised to take that advice and were legally obliged to have told Prof Corbally they were not following that advice, he said.