Wednesday 17 January 2018

Supreme Court upholds dismissal of Medical Council ruling against well-known surgeon

Prof Martin Corbally
Prof Martin Corbally

Aodhan O Faolain

THE Supreme Court has upheld a lower court's decision to dismiss a finding of Poor Profession Performance (PPP) against leading consultant paediatrician Professor Martin Corbally.

A finding of PPP made against him by the Medical Council's Fitness to Practise Committee after an incorrect `tongue-tie' procedure was carried out on a young patient of his by another doctor.

In 2012 the Council's Fitness to Practice Committee after making the finding of PPP, imposed a sanction of admonishment on Professor Corbally arising from an admitted error in his notes concerning the required procedure for a two year old girl, a private patient of his at Our Lady's Hospital Crumlin.

The girl required an upper labial frenulum but an incorrect tongue tie procedure was carried out by another doctor to whom Dr Corbally delegated the child's surgery after being called to emergency surgery. Dr Corbally carried out corrective surgery shortly afterwards and the child made a full recovery.

Professor Corbally launched a High Court challenge against the committee's findings, and the sanction imposed.

In overturning the finding of PPP and a sanction of admonishment in November 2013, the President of the High Court, Mr Justice Nicholas Kearns, found the error arose from a systems failure at the hospital for which Dr Corbally was not responsible.

Those failures, which have since been remedied, included that the hospital's drop down computer menu concerning management of procedures only allowed for a tongue-tie procedure to be inserted and not an upper labial frenulum.

Because the 2007 Act allowed for no appeal against a sanction imposed for PPP, it was appropriate to read the Act as requiring a single lapse or offence must be "serious", he said.

This error was not very serious, made no real contribution to the eventual procedure carried out and a non-causative lapse must be seen as less serious than one which causes damage.

The "real problem" lay with hospital systems which did not allow for Dr Corbally's detailed and correct description of the required procedure on the child's admission card to be properly transcribed, Mr Jusitce Kearns said. 

His judgment involved the first ever court interpretation of the meaning of PPP in the 2007 Act and, in its appeal,  the Council argues his decision means a finding of PPP must be based on assessment of a fair sample of a doctor's work and cannot be based on a not very serious once-off incident.

That finding by the High Court President was appealed to the Supreme Court.

This morning the five Judge court comprised of Mr Justice Adrian Hardiman the Chief Justice Susan Denham Mr Justice Donal O'Donnell, Mr Justice Liam McKechnie and Ms Justice Elizabeth Dunne unanimously dismissed the Medical Council's appeal, and upheld Mr Justice Kearns' decision.

Mr Justice Hardiman whose judgment the other members of the court agreed with said in the circumstances he was satisfied to dismiss the appeal

Dr Corbally, with an address at Corballis, Donabate, Co Dublin was "not merely a competent doctor but a distinguished one," and that the case was "an unfortunate and in many ways a sad one."

The five judge courts decision has important implications for the regulation of the medical and healthcare professions has opened at the Supreme Court.

The court was asked to define the proper meaning of “poor professional performance” (PPP) in the 2007 Medical Practitioners Act in the Medical Council's appeal against the dismissal of a PPP finding against  Prof Corbally.

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