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Cite as: [2012] IEHC 477
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Judgment Title: Flynn -v- Medical Council Neutral Citation: 2012 IEHC 477 High Court Record Number: 2012 83 JR Date of Delivery: 11/22/2012 Court: High Court Composition of Court: Judgment by: Hogan J. Status of Judgment: Approved |
Neutral Citation Number: [2012] IEHC 477 THE HIGH COURT [2012 No. 83 J.R.] BETWEEN LAURENCE FLYNN APPLICANT AND
MEDICAL COUNCIL RESPONDENT JUDGMENT of Mr. Justice Hogan delivered on the 22nd day of November, 2012 1. Under what circumstances should the Medical Council (or more accurately, the Preliminary Procedures Committee of the Council) open a full inquiry into the conduct of medical practitioners following a complaint by a former patient? If, moreover, the Council declines to initiate such an investigation following a complaint by a member of the public, under what circumstances- if any- can this Court intervene by way of judicial review? These are the essential issues which are presented by this application for leave to apply for judicial review which is being heard on notice to the Medical Council following an order in that behalf by this Court (Ryan J.) of the 5th March, 2012. The background to the complaint 3. As a result of this mishap Mr. Flynn contended that he suffered considerable pain and had difficulties in swallowing. This complaint was not necessarily received sympathetically by the medical personnel he consulted in the years that followed. Thus, as late as November 1995 a Professor of Dentistry dismissed the suggestion that a bone on the left side of the mouth was broken, saying that:-
5. Yet Professor Gordon Russell of the Department of Dental Surgery at UCC noted in a letter of 16th September, 1994 that:-
"Axial and coronal reconstruction show both the right and left pterygoid bones to be intact. I see no evidence of any deformity or fracture currently. No appreciable change since 2004." 9. Another radiologist, Dr. C, also reviewed these images and concluded that the "pterygoid plates appear within normal limits". In view of Mr. Flynn's concerns about a possible misdiagnosis, the images were also reviewed by a Dr. D, a consultant radiologist. Dr. D. also agreed that there was no evidence of a pterygoid plate fracture or erosion. 10. Mr. Flynn was still dissatisfied. He commenced several sets of medical negligence proceedings against the hospitals in question, but as part of an agreement to discontinue one of those sets of proceedings, the hospital in question agreed to commission a report from Professor Nigel Hoggard, a specialist from the Academic Unit of Radiology at the University of Sheffield. In 2011 Professor Hoggard reviewed the images from 1994 and concluded in a report as follows:-
12. The importance of this report for Mr. Flynn cannot, I think, be overstated. After all, a succession of medical practitioners had rejected his contentions and, moreover, some had maintained that he was suffering from a psychiatric condition. In many respects, Mr. Flynn was doubly unlucky. He was unlucky in the first instance to have (probably) fractured his left hamulus in a freak incident, but he was secondly unlucky in that this condition is so rare that even the specialist radiologists whom he consulted were unaware of it. Irrespective, therefore, of his strict legal merits so far as this application for judicial review is concerned, it is important to acknowledge here the frustration which Mr. Flynn must understandably have felt by reason of the failure of the medical practitioners he consulted to diagnose the root cause of the problem. It is to his credit that he seems to have single-handedly preserved against the odds over a long period until the validity of his concerns was belatedly acknowledged. 13. It should, however, equally be said that the available evidence does not support the more serious allegations which he made against the consultants concerned- namely, that of deliberate misrepresentation of the evidence- and I will return to this later in my judgment. The complaints to the Medical Council 15. Some days later, Mr. Flynn then made a second complaint against Dr. C. and Dr D. It is these latter complaints which are the subject matter of the present application for judicial review. Counsel for the Council, Mr. Leonard, drew attention to the fact that these complaints were similar in nature to those previously made against Dr. A. and Dr. B. and were made within days of this Court rejecting an application for leave to apply for judicial review. Mr. Leonard urged me to infer from these circumstances that the applicant had simply held these complaints in reserve and that the making of these complaints was abusive. While I do not at all exclude the possibility that doctrine such as Henderson v. Henderson (and other similar rules which might deal with the deliberate and strategic manipulation of the complaints system) might apply by analogy to complaints made under the 2007 Act in much the same way as they apply to ordinary civil litigation, this was a finding which was never made by the Council itself. If the Council did not reject the second set of complaints- and which are the subject of this application for judicial review- on this ground, I do not see how I can step in and in effect advance a fresh reason for rejecting these complaints on their merits when this very reason was never put forward by the regulatory body charged with the statutory duty of adjudicating on these issues. 16. A further consideration here is that the allegations of deliberate misreading of the medical notes and images are serious ones going to the bona fides of the medical practitioners concerned. It seems implicit in the decisions of the Preliminary Proceedings Committee that this particular allegation was found to be entirely without substance, so far as Dr. C. and Dr. D (and, for that matter, so far as the original decision is concerned, Dr. A. and Dr. B.) were concerned. I shall return to this topic later in the judgment. 17. Before considering the principal legal issues which arise with regard to the furnishing of reasons and so forth, it is necessary first to set out in summary the relevant statutory regime regarding complaints involving medical practitioners. Part 7 of the Medical Practitioners Act 2007
(a) professional misconduct, (b) poor professional performance....."
(a) any information supplied under this section concerning the complaint, and (b) whether the complaint is trivial or vexatious or without substance or made in bad faith."
(a) the Preliminary Proceedings Committee is of the opinion that there is a prima facie case to warrant further action being taken in relation to a complaint, or.... the Preliminary Proceedings Committee shall refer the complaint to the Fitness to Practice Committee." 22. The original reasons given by the Preliminary Proceedings Committee ("PPC") by letter dated the 6th December, 2011, were in the following terms:-
24. The PPC met again on 1ih April, 2012. On this occasion the Committee concluded:-
27. There is no doubt but that the issue as to whether a prosecutor or other statutory personage is required to give reasons for their failure to take either a criminal prosecution or regulatory action is a vexed and troubling one. This is especially true in relation to criminal prosecutions where it is generally thought indecorous for a prosecutor to have to give reasons- certainly detailed reasons- for failing to prosecute a particular case. If, for example, the Director of Public Prosecutions was required to give detailed reasons for such a decision, it might be damning of a particular accused while providing cogent reasons for not acting. The Director might, for example, think that the evidence was strongly suggestive of guilt, yet decline to prosecute because of concerns regarding the reliability of a particular witness or the admissibility of key evidence. 28. Few accused persons placed in that situation would view this state of affairs with equanimity and, hence, for these practical and pragmatic reasons the courts have been reluctant to impose such a requirement on the prosecuting authorities. This is why the Supreme Court concluded in The State (McCormack) v. Curran [1987] I.L.R.M. 225 that it would only be appropriate for a court to intervene by way of judicial review of a decision not to prosecute where such decision was taken "mala fide or influenced by an improper motive or improper policy". This approach has been consistently followed ever since in the context of criminal prosecutions: see, e.g., H v. Director of Public Prosecutions [1994] 2 I.R. 589 and, in the context of criminal investigations, Fawley v. Conroy [2005] 3 IR 480. 29. Similar thinking also underlies the decision of Kelly J. in Ryanair Holdings plc v. Irish Financial Services Regulatory Authority [2008] IEHC 231, a case much relied on by Mr. Leonard, counsel for the Council. While it is true that this decision concerned a failure to take regulatory action under the Market Abuse Regulations 2005, this also concerned allegations which, if substantiated, would be certainly unlawful and might expose the entity in breach to the possibility of a serious financial sanction. Viewed thus, the case is much closer to the cases involve failure to prosecute in respect of criminal offences than a case involving a regulatory breach simpliciter. 30. Moreover, unlike this case, the complaint in Ryanair did not engage- or, at least potentially engage- two important constitutional rights, namely the protection of the person and the right to a good name (both protected by Article 40.3.2) and this, as we shall see, is an important distinction from the present case. In any event, aspects of this reasoning insofar as it concerns decision-making pursuant to statute may now have to be re-considered in the light of the subsequent decision of the Supreme Court two years later in Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 IR 701, a topic which I will consider presently. 31. A further consideration here is that the Oireachtas has itself prescribed the statutory conditions by reference to which a decision to act (or not to act) must be measured. These considerations simply do not apply, for example, to decisions of the Director of Public Prosecutions. While the parameters of that office are regulated by the Prosecution of Offences Act 1974, the decision as to whether to prosecute is not itself governed by statute. By contrast, the Oireachtas has here enunciated a statutory test in relation to the question of whether "further action" should be taken in relation to any given complaint. 32. This, it seems to me, is a crucial consideration, because unless adequate reasons are given for such a decision, it would be all but impossible for a court to perform its supervisory functions and to ensure that the Council properly discharged its statutory functions in the manner which, for example, Henchy J. envisaged in the above-mentioned passage in Lynch. As Murray C.J. observed in Meadows ([2010] 2 IR 701, 732):-
Unless that is so then the constitutional right of access to the Courts to have the legality of an administrative decision judicially reviewed could be rendered either pointless or so circumscribed as to be unacceptably ineffective. In my view the decision of the Minister in the terms couched is so vague and indeed opaque that its underlying rationale cannot be properly or reasonably deduced."
35. It must also be recalled that Article 40.3.2 also expressly protects the good name of all citizens and the State commits itself, as best it may, by its laws to vindicate that right. As Hardiman J. noted in Grant v. Roche Products Ltd. [2008] IESC 35, [2008] 4 IR 679, the word "vindicate" in this context implies that the person's whose good name has been unfairly impugned will be "cleared of blame." 36. Here it may be observed that the two medical practitioners in question, Dr. C and Dr. D., faced the potential allegation of deliberate misreading medical notes and images. This was a serious allegation which, reading between the lines, the PPC considered was unfounded. But if that constitutional right to good name is to be appropriately vindicated by the Council, there should be no need at all for anyone to have to read between the lines. If a complaint of this kind is to be rejected for this reason, than essential fairness and the protection of that good name would also require that this should be expressly stated. 37. None of this is to suggest that the Council is required to give a discursive judgment (cf the comments of Murphy J. in O'Donoghue v. An Bord Pleanála [1991] I.L.R.M. 751, 757). But, as Murray C.J. pointed out in Meadows, it does mean that the essential rationale of the decision should be evident - or, at least, capable of "being inferred from its terms and its context." Given, moreover, as we have just seen that the Council also owes a duty to protect, where appropriate, the good name of the medical practitioners against whom the complaint has been made, there is no reason why the reasons for summarily rejecting a complaint without the necessity for further action could not be pithily and succinctly expressed, quite often in two or three sentences. Were the reasons proffered for the first decision adequate? 39. Furthermore, as we have already seen, inasmuch and insofar as the Committee's decision that no further action is required is based on the view that the medical practitioner's personal and professional conduct is beyond reproach, any effective vindication of his or her good name in the manner required by Article 40.3.2 requires that this should be expressly stated. This is yet a further reason why reasons - however brief and pithy - must be given for the decision. 40. It should be stressed, of course, that insofar as such reasons are defective, they could generally be cured by the addition of just a few words. Thus, for example, in the present case the Committee ought to have expressly stated that the allegations of deliberate wrong-doing were unfounded. 41. It follows, therefore, I have concluded that:-
ii. Where the Committee considers that any allegations against the good name and professional integrity of the medical practitioner concerned are unfounded, the obligation contained in Article 40.3.2 to vindicate that good name requires that the Committee must expressly clear the practitioner concerned of any blame and give reasons - however succinct or pithy - to this effect. iii. The reasons given in respect of the first decision did not comply with these requirements. 42. We may now turn to consider the adequacy of the reasons given in respect of the second decision in April, 2012. It will be recalled that by this stage the Committee had before it the report of Professor Hoggard which, as we have already noted, to all intents and purposes, substantially vindicated the contentions which Mr. Flynn had been making all along, even if account is also properly taken of the fact that the crucial original images from 1994 do not lend themselves to the degree of exactitude that would now be possible with higher resolution imaging. 43. The Committee's statement to the effect that Mr. Flynn's fresh correspondence "did not contain any further information which would warrant reconsideration of its opinion" is nevertheless a rather surprising one. After all, Professor Hoggard's report put the entire matter in a completely new light. It showed- or, at the very least, tended to show- that Mr. Flynn's contentions in relation to the asymmetry were correct and that a fracture of the left hamulus was an entirely plausible explanation for trauma. This in itself was hugely significant, as was the fact that Professor Hoggard had stressed that this phenomenon was so unusual and exceptional that few radiologists had ever encountered it or would be aware of it as a possible explanation for trauma. 44. If matters rested at that point, I would unhesitatingly have granted the applicant leave to apply for judicial review on the basis that one of the reasons given by the Committee- namely, that no new information of any significance had come to light was simply not factually sustainable. 45. Matters do not, however, rest there. As we have seen, the Committee also relied on Professor Hoggard's report by way of justification for the decision not to take any further action. After all, Professor Hoggard had found that the phenomenon in question was so unusual that the great majority of radiologists were simply unaware of it and, indeed, Professor Hoggard specifically noted that he had never previously been asked during his own career to comment upon the pterygoid hamuluses. 46. It is necessarily implicit from the Committee's decision and the reasons given by reference to Professor Hoggard's report that it considered that it could not possibly have concluded that the consultants in question had a case to answer, precisely because of the statutory definition of the term poor professional performance ("standards of competence....that can reasonably be expected of medical practitioners practising medicine of the kind practised by the practitioner"). It cannot be reasonable to expect consultant radiologists to have a specific knowledge of a condition which is so rare that the vast majority of radiologists are unaware of it. In these particular circumstances, it is impossible to see how they could have been guilty of poor professional performance. 47. Besides, in evaluating the question of whether a prima facie case has been established, the Committee is entitled to determine "whether the application has any real prospect of being established at an inquiry, any doubt being resolved in favour of an inquiry being held": see Law Society of Ireland v. Walker [2006] 3 I.R. 581, 600, per Finnegan P. Conclusions 49. In these circumstances, the unsatisfactory aspects of the Committee's reasoning notwithstanding, it is nonetheless plain that if regard is had to the overall reasons advanced for the second decision given in April, 2012, then insofar as they emphasise the fact that Professor Hoggard had stressed that most radiologists were simply unaware of the nature of the applicant's condition, that in this respect those reasons are accordingly adequate to satisfy the requirements of the comments of Murray C.J. in Meadows. It follows, therefore, that the decision is also accordingly capable of independent justification on grounds of factual sustainability and rationality. 50. It is for that reason- and for that reason only- that I will refuse the applicant leave to apply for judicial review.
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