Understanding Corbally

In light of the recent Supreme Court decision in the case of Corbally v. Medical Council & Others, the PSI’s Fitness to Practise Unit highlights for your information the background and outcomes to that decision, and places this in the context of the PSI’s disciplinary structure and procedures.

Many of you may already be familiar with the Corbally case which arose initially following an incident involving a Consultant Paediatric Surgeon, Professor Martin Corbally, when he incorrectly described the procedure to be performed on a patient in his handwritten outpatient note. However, he correctly described the procedure to be carried out as “tongue tie (upper frenulum)” on the booking form for theatre. The patient administration system in place in the hospital did not allow for the words “upper frenulum” to be inserted after tongue tie and as a result the incorrect procedure was carried out on the patient. Professor Corbally did not carry out the procedure. The error was discovered and rectified on the same day and no adverse outcome was suffered by the patient. A complaint was made against Professor Corbally to the Medical Council and a finding of poor professional performance was made against him. He was admonished by the Medical Council.

High Court
Professor Corbally brought judicial review proceedings to the High Court to quash both the finding of poor professional performance and the sanction imposed on him. (Judicial review involves a review of the process by which a decision was made. It does not involve a re-assessment of the facts of the case). The High Court found in Professor Corbally’s favour and quashed the finding and the sanction imposed on him.

Supreme Court
The Medical Council appealed this decision to the Supreme Court. The Supreme Court upheld the decision of the High Court on 4 February 2015. The Court delivered three judgments, one majority judgment of Mr. Justice Hardiman and two minority judgments of Mr. Justice O’Donnell and Mr. Justice McKechnie. The Supreme Court held that a threshold of “seriousness” must be applied to the definition of poor professional performance. Only performance which represents a serious falling short of the standards of competence that can reasonably be expected of a doctor can justify a finding of poor professional performance. A single incident can be poor professional performance, provided this incident meets the threshold of seriousness.

Mr. Justice McKechnie noted that if an act was sufficiently serious, it would not be necessary to await “persistent or repeated” incidents of substandard performance. In doing so he recognised the risk that this approach may pose to patients. Mr. Justice McKechnie also noted that in considering whether or not an error is serious, one of the factors to be considered is the presence of an adverse outcome. However, an error that has no adverse outcome may still be poor professional performance.

The Supreme Court referred to alternative methods of dealing with complaints, including mediation.  However, it is important to note that the Corbally case concerned the Medical Practitioners Act 2007, which provides for resolution by mediation of complaints which have been found not to warrant referral to an inquiry. The Medical Council has significantly more information than the PSI at the screening stage, as the Medical Practitioners Act 2007 allows for their Preliminary Proceedings Committee (PPC) to utilise appointed case officers to investigate the complaint. Part 6 of the Pharmacy Act 2007 does not provide for mediation at that same juncture.
The Supreme Court recognised the potential effect that a public hearing before a regulatory body has on a practitioner and noted that as a result there must be reason to believe that the allegations made are of a serious nature.

The PSI Fitness to Practise process

The PSI’s Fitness to Practise process involves a four stage procedure.

  1. Preliminary Proceedings Committee (PPC)
    All complaints received by the PSI are referred to the PPC, which acts as a screening committee and decides if further action is warranted in relation to a complaint. If the PPC decides that no further action is warranted, the PPC will give this advice to Council. If the PPC decide that further action is indeed warranted, the complaint is referred forward for inquiry (before the Health Committee or the Professional Conduct Committee (PCC), or for mediation). The PPC may seek legal advice whenever it wishes in relation to a particular complaint.

  2. Council, after PPC
    When Council receive advices from the PPC that no further action is warranted, Council then considers whether to accept this advice, or whether further action is warranted. If Council decides that further action is warranted, Council refers the matter back to the PPC. The PPC then refers the complaint forward for inquiry or mediation (as above).

  3. Inquiry/Mediation
    If a matter is referred to inquiry/mediation, all necessary investigations are conducted by the legal representatives for the PSI to prepare the matter for inquiry. All documentation is furnished to the pharmacist/pharmacy owner in advance of the inquiry. The inquiry is then heard by a disciplinary committee. A legal assessor (advisor) sits with the committee to advise them on any legal issues which may arise during the course of the inquiry. After the inquiry has concluded, the committee prepares a written report, outlining its findings and, if necessary, recommending a sanction.

    In suitable cases, the PPC may refer a complaint for mediation. Both the complainant and the pharmacist/pharmacy owner must consent to the complaint being dealt with by way of mediation. At the conclusion of the mediation process, the mediator must prepare a written report on the terms of resolution of the complaint. This report is sent to the Council. The Council has published a policy document on mediation which states that mediation is not suitable where the complaint raises potential public protection issues.

  4. Council, after inquiry/mediation
    The Council considers the report of the relevant committee and any recommendations of the committee on sanction. If the committee did not find the complaint to be substantiated, then the Council must dismiss the complaint. If the complaint was substantiated then Council must impose a sanction. The Council’s legal assessor (advisor) is present when Council is hearing the application in relation to sanction (including what the pharmacist/pharmacy owner has to say) and is available to give legal advice if required at that time. The Council does not have to impose the sanction recommended by the disciplinary committee. Some sanctions must be confirmed by the High Court before they can take effect.

The PSI will continue to follow the processes specified in the Act (and summarised above) in dealing with complaints made. The PSI has applied the High Court judgement in Corbally since it was handed down. The PSI is giving consideration to any further implications which may arise out of the Supreme Court decision in Corbally. The PSI has always and continues to comply with the principles of natural justice and relevant decisions of the courts in relation to Fitness to Practise matters.

The Supreme Court judgements in the case of Corbally v Medical Council & Others can be accessed at www.supremecourt.ie.

See related information on this website.