The Supreme Court dismissed an appeal by the Medical Council and the Attorney General concerning a disciplinary finding against Professor Martin Corbally, holding that the error at issue did not pass the seriousness threshold for poor professional performance.
The case arose after a child due to undergo a simple surgical procedure had an operation performed on the wrong frenulum and was readmitted for the correct surgery. In a judgment delivered on 4 February 2015, Justice Donal O’Donnell said the incident properly warranted investigation. He noted that Professor Corbally was the only person or institution to receive a disciplinary sanction.
Justice O’Donnell agreed with Justice Adrian Hardiman’s judgment that Corbally had made a “slip of the pen” that misdescribed the planned operation, but did not cause or contribute to the wrong operation being performed. He agreed that only a serious error, or a series of errors that was serious, could justify a finding of poor professional performance. Even admonishment, the lowest sanction, could have severe consequences for a doctor’s career and livelihood, he said.
Justice O’Donnell differed on how high that threshold should be. He rejected the view that conduct must be “very serious” or serious enough to put a doctor’s registration at risk. Under the Medical Practitioners Act 2007, he said, poor professional performance could include conduct serious enough to merit public censure, admonishment or written advice. But he agreed the threshold of seriousness was not met in this case.
He also agreed that the Fitness to Practise Committee’s decision should be quashed because it did not explain whether it had accepted or departed from its legal assessor’s advice that a seriousness threshold applied. Without reasons, it was unclear whether the committee had considered the conduct serious, or had concluded that an error not serious in itself could still amount to poor professional performance. The committee’s report, he said, should have made its approach clear to the Medical Council, the profession, the public and the doctor concerned.
The judgment says the High Court’s finding was to be upheld and the appeal dismissed. Justice O’Donnell’s judgment records his agreement with Justice Hardiman’s judgment and with Justice McKechnie on the seriousness threshold; it does not set out the Supreme Court’s orders in full.