Simon Harris (Wicklow, Fine Gael) | Oireachtas source

I will comment on Deputy O'Reilly's amendments together. I note her wish to appropriately reflect the Corbally judgment in the regulatory Acts, specifically by the addition of the words "serious error" to the definition of "poor professional performance". This was the subject of a good and intense debate on Committee Stage. The issue has been considered by my officials since then, and, indeed, had been considered before Committee Stage as well. As advised on Committee Stage, the health regulators are absolutely clear in their application of legislation that a threshold of seriousness applies to poor professional judgment. The Supreme Court's judgment in the Corbally case left no doubt in this regard. The judge at the time ruled that:

The term “poor professional performance” has a threshold of seriousness built into it: therefore only conduct or activity, by act or omission, which reaches that level, can be said to meet the test.

Against this clear Supreme Court ruling, these amendments propose to insert a variation of additional phrasing into the definitions in the four Acts. I am advised that such an introduction risks potential unintended consequences and would not bring additional clarity. Do these amendments intend the word "serious" to apply only to error or also to failure, and is that intention sufficiently clear in the proposed definition? As we know, professional regulation is a highly litigated area and the amendment of definitions, in particular, is something we must approach with great caution. It is also worth noting that the regulatory Acts provide for a registrant to provide particular undertakings to the regulator in appropriate circumstances. These may be employed, for example, where the necessary threshold of seriousness has not been met. A revision of the definition could, therefore, impact on these or other aspects of the legislation, which are, therefore, difficult to predict in advance. For these reasons, I remain of the view that it is neither necessary nor desirable to amend the definition and accordingly, I am not in a position to support these amendments. The Supreme Court ruling has provided great certainty, and my fear is that amendments to the definition would accidentally inject a degree of uncertainty into this area.

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