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SLIP OF THE PEN EXPOSES FLAWS IN MEDICAL COUNCIL COMPLAINTS SYSTEM
At a time when complaints against doctors to the Medical Council are on the increase, it is important to consider some fundamental flaws in the complaints system introduced by the Medical Practitioners Act 2007 and how these flaws are giving rise to a widespread perception among doctors that the system is often unfair and in need of radical corrective surgery.
The legal case that highlighted, more than any other case, the flaws in the complaints system is the case taken in 2012 by Professor Martin Corbally against a decision of the Medical Council to “admonish” him for “poor professional performance”. The case arose from a complaint that a minor surgical procedure had been carried out on the incorrect frenula by Professor Corbally’s specialist surgical registrar.
In the Supreme Court, the late Mr. Justice Adrian Hardiman, in a judgment that was scathingly critical of the Medical Council’s handling of the matter, put it in context thus:
“Any person, certainly any medical person, reading the note, and being aware that there is, anatomically, no “upper lingual frenulum” would be aware that a slight error had been made, of the sort that we all are accustomed to hearing every day in speech and to correcting mentally, or by enquiry. Thus, at the simplest level, a person well known to the speaker may be addressed by an incorrect name. This is often called a “slip of the tongue”. Professor Corbally made a slip of the pen….”.
There is no doubt that Professor Corbally was subjected to a grave injustice. The minor error in his outpatient note which was subsequently corrected by him on the admissions card and found by both the High Court and Supreme Court not to have been the cause of the incorrect minor surgical procedure carried out by his registrar, gave rise to a series of events over a period of four years which can be best described as Kafka-esque – the subsequent saga involved an enquiry by the Preliminary Proceedings Committee – followed by a full public enquiry of the Fitness to Practise Committee – followed by a public “admonishment” by the Medical Council – followed by a public Judicial Review Hearing by the High Court and ending with a public appeal by the Medical Council to the Supreme Court.
In the full public glare, Professor Corbally was subjected to extensive publicity some of which was categorised by the Supreme Court as “lacking in fairness and moderation”.
Mr. Justice Hardiman said in his judgment in the Supreme Court that:
“I do not think it is proper to subject any person to what happened to Professor Corbally except in relation to a serious matter. Moreover, if a failing does not need to be “serious” then a medical practitioner might be treated as Professor Corbally has been in respect of a non-serious or even trivial once-off failing. I do not consider this to be fair or just. More specifically I do not consider it to be an adequate vindication of the constitutional rights of a person in Professor Corbally’s position, especially his right to his good name and his right to earn a livelihood. Still more to the point, I do not consider it to be what the Oireachtas expressed in enacting the Medical Practitioners Act 2007”.
In short, the Medical Council got it badly wrong. Its ineptitude in dealing with the complaint was exceeded only by its arrogance in failing to make a full and public apology to Professor Corbally after the Supreme Court fully exposed the Medical Council’s mishandling of the complaint. As members of the Medical Council and its Committees are protected against legal suit for anything done in the course of their duties, Professor Corbally has no legal remedy against the Council.
It is a matter of great concern that the flaws in the complaints system exposed by Professor Corbally’s case have not yet been addressed by the Oireachtas. The following matters need to be addressed with a degree of urgency lest the appalling treatment to which Professor Corbally was subjected, be repeated:
A distinction needs to be made in the legislation between the processing of complaints of a “serious” nature, and complaints of a “non-serious” nature. Complaints of a “non-serious” nature should not be heard in public. Complaints of a serious nature should only be heard in public if the Medical Council has first determined that a non-public hearing would undermine its statutory objective of protecting the public;
The Medical Council should be mandated in the legislation to seek to resolve complaints, in the first instance, in a non-adversarial manner whether by mediation, collaboration or otherwise – except where to do so would undermine its statutory objective of protecting the public by promoting and better ensuring high standards of professional conduct and professional education, training and competence amongst doctors.
Doctors complained against should have the right to appeal to the High Court against any decision of the Medical Council imposing a sanction. Under the existing legislation, a right of appeal does not exist against a decision imposing a sanction of “advice”, “admonishment” or “censure”. The absence of a right to appeal in these instances where the imposition of a sanction, albeit at the lower end of the scale, can have a devastating effect on a medical practitioner’s reputation, especially in relation to complaints that are heard in public, places a serious question mark over the constitutionality of the sections of the Medical Practitioners Act that deny the right of appeal.
The lay majority rule for composition of FPC enquiries should be repealed. Lay people are not well placed to make quasi-judicial deliberations on matters that can ruin the reputation and livelihood of medical practitioners.
At least one suitably qualified lawyer should sit as a member of all FPC enquiries. If the FPC in Professor Corbally’s case had accepted the advice of its own legal counsel, the complaint would not have progressed any further. Under the existing legislation, the FPC is entitled to ignore the advice of its own legal counsel.
In relation to complaints that are heard in public a set of legally binding rules should be introduced into the system in relation to the reporting of FPC hearings. The rules should be supported by an appropriate enforcement and sanctions regime to ensure compliance.
Felix McTiernan