The High Court quashed three Medical Council findings of poor professional performance against surgeon Martin Corbally and set aside the admonishment imposed over an incorrect procedure carried out on a young patient in 2010.
In a judicial review judgment delivered on 14 November 2013, President of the High Court Nicholas Kearns held that the Fitness to Practise Committee (FPC) was entitled to find that Corbally had incorrectly described the procedure in his notes. But the error was not sufficiently serious to support a poor performance finding in the circumstances, and the admonishment was disproportionate.
The patient, identified in the judgment as patient X, was two and a half when referred for release of the upper frenulum beneath her lip. Corbally’s notes described the procedure as excision of an “upper lingual frenulum”, although he correctly listed the intended procedure on the hospital admissions form as an upper frenulum release. The hospital’s booking system recorded only “tongue tie release”, after the clarifying words were not entered.
On the day of surgery, Corbally was called to deal with an emergency and delegated the procedure to a specialist registrar. The registrar performed a lingual frenulum release, which was unnecessary; the intended upper frenulum procedure was carried out later that day. The child recovered, with no ongoing disability. Her parents complained to the Medical Council.
The FPC found that Corbally’s note was inaccurate, that he failed to communicate adequately when delegating, and that he failed to apply appropriate clinical judgment. The Council adopted the FPC’s recommendation and admonished him. The committee also identified concerns about hospital booking and coding, the correct-site policy, the surgical pause and communication. The court stressed that this was judicial review, not an appeal on the merits.
Kearns P. held that a single lapse can amount to poor professional performance if sufficiently serious, but concluded that this note error did not meet that threshold. He found no evidence that it contributed to the wrong procedure: other records and discussions accurately identified the intended operation, but the surgical team did not use them. He also quashed the delegation finding, saying the court could not rationally treat the brief instruction, given as Corbally was responding to an emergency, as poor performance when the registrar could have clarified it before proceeding. The FPC had relied on hospital systems weaknesses that were not part of the allegation against Corbally, which the judge said raised fair-procedure concerns.
The court also quashed the finding that Corbally’s clinical judgment was poor, describing it as repetitious in light of its conclusions on the other findings. The judgment addressed the FPC findings and Council sanction; constitutional and European Convention claims had been held over by agreement and were not decided. The court accepted the respondents’ submissions that the reasons given were adequate.