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Mary O`Rourke QC

CALLED TO THE BAR 1981

Queen's Counsel 2009


General Profile

Background

 

1977 - 1980 University of London, King`s College, LL.B - 1st Class Honours.

1980 - 1981 Inns of Court School of Law [Bar Finals] - Upper Second Class Honours

1981 - Called to the Bar of England and Wales (Gray's Inn)

1981 - 1982 College of Europe, Bruges, Belgium - Certificat de Hautes Etudes Europeenes (Law)

1982 - 1983 undertook 12 months pupillage at Carpmael Building with Philip Naughton (later QC)

1984 - became Member of Chambers at Carpmael Building

1997 - 1998 University of London, King`s College - Postgraduate Certificate in Sports Law

2003 - Called to the Bar of Northern Ireland

2008 - Winner of Professional Discipline Junior of the Year Award at the Chambers & Partners Bar

 

Email: morourke@3serjeantsinn.com



General Information

 

Awards

2009 - Appointed Queen's Counsel (recognised as Senior Counsel in Northern Ireland)

2009 - Appointed to Northern Ireland Directorate of Legal Services Medical Negligence and General Litigation Panel of Senior Counsel



Directory Comments

 

 Mary has been top-ranked for clinical negligence and professional discipline by Chambers & Partners for several years. She is also recommended in clinical negligence and professional discipline by the Legal 500. She won Professional Discipline Junior of the Year in the Chambers & Partners Bar Awards 2008.

 

'Mary O'Rourke QC has an imposing reputation and is known for taking on difficult and often very high-profile GMC defence cases, where she really fights her client's corner. "A force to be reckoned with," she "knows every inch of the law." .... Chambers and Partners 2011

 

'Mary O'Rourke QC is a real fighter for her clients and "a tough advocate who goes for the jugular and gets excellent results." She has a wealth of experience in the field.'.... Chambers and Partners 2011

 

Mary O'Rourke QC  is praised for her robust handling of cases. She is extremely popular among solicitors, many of whom believe that "her promotion to silk is much deserved and will be a great success."  Chambers and Partners 2010


Mary O'Rourke QC  is distinguished by her "astonishing intellect and ability to fight tooth and nail for every point."  Chambers and Partners 2010

 

"...commended for her 'top drawer legal knowlege'..." Legal 500 2008

 

‘Renowned for her “no-nonsense approach,” she is “a real scrapper” who approaches her cases with “fervour and energy, going at it hell for leather.’ Chambers & Partners 2009

 

“confident and steely” Chambers & Partners 2009

 

 



Nature of Practice

 

Professional Regulation and Discipline  (defending)

Clinical Negligence (predominantly defence work)

Employment (Discrimination and Dismissal) (on behalf of employers and employees)

Public law/ Admin Law (principally related to healthcare professionals and regulators and/or healthcare issues)

Sports law (particularly where sports medicine issues arising)


Professional Regulation and Disciplinary Work
Representation of clients at GMC, GDC, UKCC and now NMC, Health Professions Council (HPC), Royal Pharmaceutical Society Statutory Committee, NHS Tribunal and FHSA Medical and Dental Service Committee Appeals. Advisory work for the former UKCC on Disciplinary matters and drafting of Regulations. Advisory work and representation of Consultants and nursing staff at Health Authority or Trust Disciplinary proceedings and in Whitley Council procedures and proceedings conducted under Department of Health Circulars (particularly HC(90)9) and MHPS. Advising on judicial reviews and advice and representation in appellate proceedings arising out of disciplinary procedures (particularly GMC). Past advisory work and representation in Disciplinary proceedings for the Chartered Society of Physiotherapists. Representation of osteopaths, dieticians and other allied professions before various Disciplinary bodies. Acted as lawyer Chairman under HC(90)9 Annex B procedures and on hospital disciplinary appeals. Representation of barristers, solicitors and other professions before regulators and disciplinary bodies.
Undertook first case at the GMC in 1986 and consistently been representing doctors before the GMC since then in every type of hearing and before every type of Panel or Committee. In 2009/2010 professional discipline work accounted for 80% of practice. In 2009-2011 involved in the longest running case (86 days) in the history of the NMC (Maggs and Johnson).
Involved in 2010 in some of the most high profile cases before the GMC or arising out of GMC proceedings, notably the Baby P paediatrician (Dr Al Zayat) fitness to practise proceedings and voluntary erasure applications and successful judicial review proceedings arising therefrom, the Dr Wendy Chapman (Harlequins Club Doctor) "Bloodgate" GMC misconduct hearing and the Dr Southall cases in the Court of Appeal and as remitted to the GMC.

 

Clinical Negligence
Extensive experience over 25 plus years of all aspects of advisory work, pleadings and advocacy. Work undertaken predominantly on behalf of professional healthcare Defendants - NHS Trusts, and independent medical practitioners (specialists and GPs) through their Defence Organisations. Claimant representation also undertaken with first instance and appellate experience. Extensive High Court trial experience in medical and dental negligence cases involving issues of negligence, causation and assessment of damages. Claims regularly handled with values in excess of £ 5m. Appellate Court experience in medical law cases. Represented NHS in 5 judge Court of Appeal test cases on PSLA general damages awards (Heil v Rankin) and discount rate (Warren v Northern General Hospital) and (twice) in the test case on duty of care for ambulance services (Kent v London Ambulance Service).

 

Employment Law 
Contractual advisory work in medical and allied fields. Extensive representation at Employment Tribunals and the Employment Appeal Tribunal (Appellants and Respondents) of NHS employers and medical and dental practitioners in employment and discrimination cases. High Court injunction claims (including on appeal to Court of Appeal) for medical practitioners ad NHS Trusts. Drafting and advising on medical contracts – related to discipline.
General employment law work - ETs and EAT particularly in the educational field on behalf of a number of higher and further education providers and specifically in cases involving discrimination issues (sex, race and disability - being a particular area of interest)
Undertaken employment law work since even before Call to the Bar in 1981 (as a student undertook Tribunal work on behalf of the Free Representation Unit). Cases - including in Court of Appeal - undertaken on behalf of Bar Pro Bono Unit.
Undertook first ever Supreme Court case in area of employment law in 2011 (Edwards v Chesterfield Royal Hospital NHS Trust).

 

Public Law/ Admin Law
Public law (and specifically judicial review work) undertaken for more than 25 years mostly with reference to the NHS and regulation of the healthcare professions. First involved in a significant (and successful) judicial review of the Secretary of State for Health in 1987 (ex parte Lai) and thereafter regularly involved in Judicial Reviews of healthcare regulators. Judicial Reviews of Coroners (particularly in Northern Ireland) and successful judicial review of the GMC in 2010 on the grounds of perversity in the Baby P paediatrician case (Al Zayat).

 

Sports Law
Interest in Sports Law and in combination with medical law practice involved in a number of sports medicine claims and cases (e.g. West Brom v El Safty in CA, Appleton v El Safty in High Court and Bloodgate cases before European Rugby Council Disciplinary and Appellate Committees and GMC). Currently writing/ editing Atkin's first ever Sports Law volume.

Particular areas of professional interest  Employment or disciplinary issues in medically related fields or Sport. Public Law - with emphasis on medical related or sporting issues. Sports Law - and specifically any connection between sports injury and medical treatment. Issues arising out of interpretation of statutes or Regulations (particularly if disciplinary context). Impact of Human Rights legislation in disciplinary and employment areas.

 

 



Specialist Information

 


Reported and other cases of Interest

 

Edwards v Chesterfield Royal Hospital NHS Trust [2010] EWCA Civ 571 and [2011] EWSC 58 - case involving issue of whether damages at large consequent upon summary dismissal in breach of agreed NHS contractual disciplinary procedures where reputational damage accrued.

 

Al Zayat v GMC [2010] EWHC (Admin) (Baby P paediatrician) - judicial review of FTP Panel of GMC on grounds of perversity in rejecting Voluntary Erasure application of medical practitioner where agreed psychiatric evidence was that she was unable to participate in proceedings for misconduct.

 

GMC v Wendy Chapman (2010) (Bloodgate) - GMC Fitness to Practise proceedings consequent upon Matchday doctor cutting player's lip intentionally after blood substitution in Harlequins v Leinster Heineken Cup match and then lying about it. Succeeded in obtaining a finding her fitness to practise was not impaired.

 

Cocliff v The Manchester College [2010] UKEAT 0035 10 1006 - first case considered in an appellate Tribunal relating to the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 - establishing that the test for less favourable treatment involved 3 distinct elements.

 

Southall v GMC [2009] EWHC 1156 (Admin) and [2010] EWCA 407 - appeals (successful in CA) against finding of serious professional misconduct and consequent erasure in respect of internationally renowned Consultant Paediatrician. Important principle as to the need to give reasons for factual findings.

 

R v HM Senior Coroner for Northern Ireland ex parte Donaldson [2010] NIQB 47 and 144 - judicial review of Coroner on the grounds of apparent bias where Coroner determined to use as a medical expert a Consultant who had been involved in previous defamation proceedings in respect of the same death and was unable to disclose material he had seen in those proceedings because of an asserted claim of legal professional privilege.

 

"Bloodgate" - ERC v Chapman (2009) - ERC Disciplinary Committee and ERC Appellate Committee - represented (successfully) Harlequins Matchday doctor in Disciplinary proceedings relating to the "Bloodgate" scandal in the Heineken Cup Quater Final match. Also successful representation on appeal before the Appellate Committee.

 

Udom v GMC [2009] EWHC 3242 (Admin) - successful appeal from GMC Fitness to Practise Panel determination to impose conditions on medical practitioner's registration which in effect removed all meaning from his registration and denied him the right to practise his profession.

 

Inquest into O'Neill Deaths (2009-2010) (Northern Ireland) - complex and difficult Inquest into death of mother and child where mother suffocated her 9 year old daughter and then hng herself - having told medical practitioners she would commit suicide and take her daughter with her.

 

AVMA v GMC [2009] EWHC (Admin) - attempted judicial review by AVMA of decision by GMC not to pursue misconduct proceedings against a group of GPs involved in the care of a 10 year old who died of a rare endocrine condition. AVMA (a charity) unsuccessfully sought an order restricting any costs it (a charity) might be exposed to if it pursued the judicial review and lost.

 

NMC v Maggs and Johnson (2009-2011) - longest ever professional conduct case in the history of the NMC (or UKCC). Complaint made in 2002 concerning events in 1998-2002 at a south west London Nursing Home and hearing commenced in February 2009 and concluded in December 2011 after 86 hearing days.

 

GMC v Southall [2008] - successfully represented Dr Southall at the GMC in relation to clinical trials (CNEP) in the 1990s and in other proceedings relating to the Sally Clark case review.

 

GMC v Holton [2006] EWHC 2960 (Admin) - high profile GMC case in relation to the alleged misdiagnosis of epilepsy. Despite GMC performance assessment finding that the doctor's performance was not seriously deficient the case, uniquely, went to a full GMC hearing (and statutory appeal in the Admin Court) because of a campaign by the parents.

 

GMC v O'Brien [2007] - professional conduct case arising out of Sunday Times "sting" in relation to the provision of "sick notes" by GPs to attractive young female reporters posing as patients.

 

Appleton v El Safty [2007] EWHC 631 (QB) - quantum claim by former professional footballer in respect of loss of career damages following negligent cruciate ligament surgery.

 

Eastwood v Winckworth Sherwood Solicitors [2005] UKEAT 0174 05 1410 - important case on whether a salaried partner at a firm of solicitors is/ was an employee for the purposes of an unfair dismissal claim.

 

West Bromwich Albion v El Safty [2005] EWHC 2866 (QB) and [2006] EWCA Civ - successful action to strike out claim by football club employer against surgeon whose negligent surgery ended the career of the club's player employee.

 

Chai Patel v GMC [2005] EWHC (Admin) - successful judicial review of the GMC decision to allow unparticularised charges against Chief Executive of a large Nursing Home Group in respect of alleged deficiencies at one Home in the Group.

 

Henshall v GMC [2005] EWCA Civ 1520 - represented two paediatric consultants in the CA in this judicial review brought by parents of two children relating to the GMC's decision not to bring professional conduct allegations against the doctors concerned (2008 FTP hearing failed at half-time).

 

GMC v Biswas [2006-7] Mary represented Dr Biswas in various proceedings in the GMC, CHRP and Admin Court [2006] EWHC 464 (Admin) and [2007] EWHC 1644 (Admin).

 

Phillips v GMC [2004] EWHC 1858 (Admin) - judicial review on "double jeopardy" issue of same charges being brought before GMC Fitness to Practise Panel after successful defence before jury in criminal proceedings.

 

Mahfouz v GMC [2004] EWCA Civ 233 - case which establishes right to a short adjournment in regulatory proceedings to seek judicial review of an interlocutory decision in the proceedings.

 

C v Dr Cairns   [2003] Lloyd’s Rep Med 90 – limitation issue being decided at trial of negligence issues 25 years after events; doctor’s duty of medical confidentiality.

 

R v GMC ex parte Toth (No 2)   [2003] EWHC 1675 (Admin) – judicial review of PCC of GMC referring case to Health Committee.

 

Matthews (t/as Anton Motors) v Smith & others [2002] EWCA Civ 1722 - significant decision on TUPE where employees after being made redundant negotiated with ex-employer to take over the business at a new location with own tools etc and issue whether still entitled to redundancy payments or transferred to their own employment under TUPE.

 

Saeed v Royal Wolverhampton NHS Trust  [2001] Lloyd’s Rep Med 111 (CA) – interpretation of consultant contract on issue of professional or personal misconduct.

 

R v Sussex Police Authority ex parte Stewart [2000] EWCA Civ 101 - issue as to police pension entitlement of female officer fit after an accident to undertake many of the duties of a police officer but not all of them and whether in the circumstances entitled to ill health retirement.

 



Clients

 


Publications

 

(OUP) Principles of Medical Law by Grubb - 2nd (2004) and 3rd (2010) editions. Authored Chapter 2 - Regulation of Healthcare Professionals.

Contributor Lloyds Medical Law Reports (case notes and commentaries) 1999-2010.

Author/ editor - Atkin's Sports Law Volume (to be published 2012 by LexisNexis/ Butterworths).

 



Lectures and Seminars

 

Regularly invited to speak on issues relating to sports medicine or sports discipline and also on professional regulation issues.


Invited (and attended) in November 2011 to contribute to Law Commission "brainstorming" session on future regulation of healthcare professions with Law Commission team tasked with reform.

Presentations in recent years on sports medicine issues and to sports healthcare professionals to UKSEM (UK Sports and Exercise Medicine) Annual Conference (2011), League Medical Association (LMedA) (at Chelsea FC and Man Utd FC training grounds) (both 2011), FA (at Lilleshall (2007) and Daventry (2010), RFL at special 2 day conference in Leeds (2009), Chartered Sports Physios (2006) at Annual Conference in Greenwich, REMO (Emergency Medicine w/e conference in Lake District) (2007), UK Sport (at the Belfry) (2007), ISSSMC (International Sports Science and Sports Medicine Conference) at Northumbria University (2010).


Professional Discipline and Regulation Butterworths Conference June 2011 (at Waldorf Hotel London - speaking on Expert Evidence in Disciplinary cases).

Regular presenter of seminars for client solicitors and in-house training/ cpd for solicitors/ medico legal advisers - also for medical defence organisations.

 

Invited to speak at The 2012 British Horseracing Authority (Jan) and World Sports Trauma Congress 2012 (October)

 



Related Professional Activities

 
Professional Negligence Bar Association
ARDL (Association of Regulatory and Disciplinary Lawyers)
Bar Pro Bono Unit Panel Member and Supporter
Member of Justice
Member of Amnesty International Legal Section
Member of Amicus (anti death penalty organisation)
Bar European Group
Fabian Society and Fabian Women
British Irish Rights Watch Supporter
GB Executive Member Co-operation Ireland (cross-community charitable organisation)


Other Information