Ruling has implications for health professionals

A High Court decision from last November, Corbally v The Medical Council,  has thrown up a series of challenges for the system of complaint against doctors in Ireland, with implications for the regulation of other health professionals.

The decision has created uncertainty as to the relationship between the standards of professional misconduct and poor professional performance and as to the sample of work that may be required to demonstrate poor professional performance. It has implications both for the regulation of doctors and other health professionals including pharmacists and nurses. The case concerned the conduct of Prof Corbally, a consultant paediatric surgeon, which had been found by the fitness to practise committee to amount to poor professional performance. The Medical Council admonished him; one of the least serious of the possible sanctions available under the Medical Practitioners Act 2007.

In the judicial review proceedings that followed, the High Court examined what constitutes poor professional performance and whether it incorporated a singular error. This was the first judicial analysis of the definition of poor professional performance under the 2007 Act: “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 reasonably be expected of medical practitioners practising medicine of the kind practised by the practitioner”.

The High Court relied upon the principles distilled in the English decision of R (Calhaem) v General Medical Council. It agreed that poor professional performance differs from negligence and misconduct; that it connotes a standard of professional performance which is unacceptably low and that, save in exceptional circumstances, it has been demonstrated by reference to a fair sample of the doctor's work. Isolated error The High Court concluded that poor professional performance did encompass an isolated error in treatment or in the taking of notes. Given that such a finding must result in the imposition of a sanction and that, where that sanction was an admonishment there was no right of appeal, the court implied a requirement that a single lapse must achieve a threshold requirement of being serious. The court also concluded that a non-causative lapse must be seen as less serious – using the analogy of a motorist who commits a traffic infringement which does not give rise to loss of life. In legislating for the standard of poor professional performance, there was a clear intention by the Oireachtas to create a new standard of professional regulation governing conduct of doctors falling below the pre-existing standard of professional misconduct - a "serious falling short" of the standards of conduct expected. That intention has now been frustrated in the context of singular incidents. Such an error must be characterised as serious before it will amount to poor professional performance and before the doctor can be sanctioned. No real difference, therefore, remains between this standard and that of professional misconduct.

In considering the seriousness of a doctor's error, the court felt that regard should be had to the causative effect of that error, ie whether it led to injury. Regulatory bodies This emphasis is surprising; traditionally regulatory bodies have considered the the registrant's conduct and whether it lives up to the prescribed standards rather than the effects of such conduct. In Corbally, Mr Justice Kearns spoke of the need to avoid a "one free strike scenario" by excluding singular errors from the definition of poor professional performance; by placing emphasis on the need for damaging causative effect, the judgment may result in just such outcome for singular errors committed by doctors which do not lead to injury.

While the High Court accepted that an assessment of a fair sample of a doctor’s work was necessary before poor professional performance could be demonstrated, it made no further comment as to the composition of such a sample. This poses significant practical difficulties for the current system of regulation. A person who is dissatisfied with their doctor may make a complaint to the Medical Council on the grounds of inter alia poor professional performance; the preliminary proceedings committee then considers whether there is sufficient cause to warrant further action.

Inevitable practical difficulties arise if a sample of the doctor’s work is required to demonstrate poor professional performance. Individuals will not be able to demonstrate anything other than their own experience with the doctor. Even if a complaint concerns multiple patients, there is ambiguity as to the extent of the sample required. How might such samples of the doctor’s work be identified; what constitutes a fair sample; these are questions which remain to be answered.

The decision is under appeal to the Supreme Court. At present the difference between poor professional performance and professional misconduct is unclear; the range of complaints where the Medical Council can act is more limited and uncertainty lingers as to what amounts to a fair sample required to demonstrate poor professional performance. Elaine Finneran is a practising barrister and a lecturer in law at Griffith College Dublin