Flynn v Medical Council

JurisdictionIreland
JudgeMr. Justice Hogan
Judgment Date22 November 2012
Neutral Citation[2012] IEHC 477
Date22 November 2012
CourtHigh Court
Docket Number[2012
Flynn v Medical Council

BETWEEN

LAURENCE FLYNN
APPLICANT

AND

MEDICAL COUNCIL
RESPONDENT

[2012] IEHC 477

[No. 83 J.R./2012]

THE HIGH COURT

CONSTITUTIONAL LAW

Fair procedures

Obligation to give reasons - Adequacy of reasons - Statutory considerations - Constitutional right to good name - Constitutional right to protection of person - Supervisory function of court - Whether duty of court could be discharged in absence of reasons - Whether decision factually sustainable and rational - Whether court can advance reason for decision not advanced by regulatory body - Meadows v Minister for Justice [2010] IESC 3, [2010] 2 IR 701 and The State (Lynch) v Cooney [1982] IR 337 applied, Christian v Dublin City Council [2012] IEHC 163 followed, The State (McCormack) v. Curran [1987] ILRM 225, H v DPP [1994] 2 IR 589, Fawley v Conroy [2005] 3 IR 480 and Ryanair Holdings plc v Irish Financial Services Regulatory Authority [2008] IEHC 231 distinguished, O'Donoghue v An Bord Pleanála [1991] ILRM 750 Law Society of Ireland v Walker [2006] IEHC 387, [2007] 3 IR 581 considered - Medical Practitioners Act 2007 (No 25), ss 2, 59 and 63 - Constitution of Ireland, Article 40.3.2 - Order refused (2012/83JR - Hogan J -22/11/2012) [2012] IEHC 477

Flynn v Medical Council

Facts: The applicant had commenced medical negligence proceedings and as part of an agreement to discontinue one of those sets of proceedings, the hospital agreed to commission a report. The Court considered the circumstances where the Court could intervene by way of judicial review where the Medical Council declined to initiate a full inquiry following a complaint by the public. They had relied on a report by way of justification for the decision not to take any further action. The Court considered the provisions of the Medical Practitioners Act 2007 and the reasons for the decisions not to open disciplinary proceedings against specific doctors.

Held by Hogan J. in refusing the applicant leave for judicial review, that the decision was capable of independent justification on grounds of factual sustainability and rationality. The conclusion that the Council reached that the complaint of improper conduct and poor professional performance was without foundation and was one which they were entitled to reach having regard to the available evidence, which satisfied the requirements of bona fides, factual sustainability and rationality

HENDERSON v HENDERSON 1843-60 AER REP 378 67 ER 313 1843 3 HARE 100

MEDICAL PRACTITIONERS ACT 2007 S2

MEDICAL PRACTITIONERS ACT 2007 S57(1)

MEDICAL PRACTITIONERS ACT 2007 S59(9)

MEDICAL PRACTITIONERS ACT 2007 S63(A)

LYNCH, STATE v COONEY & AG 1982 IR 337

KIBERD & CAREY v JUDGE HAMILTON 1992 2 IR 257 1992 ILRM 574 1992/3/654

MCCORMACK, STATE v CHIEF SUPERINTENDENT CURRAN & ORS 1987 ILRM 225

H v DPP & GARDA CMSR 1994 2 IR 589

FOWLEY v CONROY 2005 3 IR 480 2005/26/5360 2005 IEHC 269

RYANAIR HOLDINGS PLC v IRISH FINANCIAL SERVICES REGULATORY AUTHORITY UNREP KELLY 10.7.2008 2008/56/11767 2008 IEHC 231

MARKET ABUSE (DIRECTIVE 2003/6/EC) REGS 2005 SI 342/2005

CONSTITUTION ART 40.3.2

MEADOWS v MIN FOR JUSTICE & ORS 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3

CHRISTIAN & ORS v DUBLIN CITY COUNCIL UNREP CLARKE 27.4.2012 2012 IEHC 163

GRANT v ROCHE PRODUCTS (IRL) LTD & ORS 2008 4 IR 679 2008/27/5893 2008 IESC 35

O'DONOGHUE v BORD PLEANALA & TALLON PROPERTIES LTD 1991 ILRM 750 1991/5/1081

LAW SOCIETY OF IRELAND v WALKER 2007 3 IR 581 2006/57/12127 2006 IEHC 387

1

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 5 th March, 2012.

The background to the complaint
2

2. The applicant maintains that in his late teenage years he suffered a mishap when in 1987 he pressed the back of his palate with his finger and in the course of this accident broke and moved his left pterygoid hamulus bone. The right hamulus bone is a hook-like narrow bone around which the tendon of muscles of the soft palate glide at the very back of the palate of the mouth. As we shall see, the injury in question is exceedingly rare and not very often encountered, even by specialists.

3

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:-

"Multiple investigations have failed to find any reason for this pain and the only people who felt that they could help him in the past have been psychiatrists, although he dismisses them and says they did not help at all."

4

4. The contemporary psychiatric notes from the period are in a similar vein. Most of the comments were to the effect that the applicant was suffering from a delusion to the effect that there was a pathology "in his face which is either not there at all or [is] only minimal".

5

5. Yet Professor Gordon Russell of the Department of Dental Surgery at UCC noted in a letter of 16 th September, 1994 that:-

"At examination today for the first time I have found a tiny firm/bony swelling or nodule at the distal end of the hard palate well to the left of the mid-line of the tuberosity [protruding bone]. This nodule coincides with the centre of the painful symptoms which are now said to occur to a lesser extent on the right side of the neck."

6

6. A CT scan was performed on the applicant in September 1994 at Cork Regional Hospital. The radiologist in question, Dr. Ryder observed that:-

"The only feature for comment is that the tergoid plate anteriorally on the right side is somewhat larger than on the left side. This is not pathological and would represent normal anatomical variation. However, it may be more susceptible to local trauma."

7

7. Mr. Flynn was not entirely happy with these investigations and in June, 2006 he had another CT scan done at another private hospital. The consultant radiologist in question - whom I shall term Dr. A. - concluded that the "diagnostic quality" of the scan was excellent and that he did not see any abnormality in the study. He further added:-

"I note that Mr. Flynn has had two previous CT scans, both reported as normal with reference to slight asymmetry of the pterygoid bone within normal limits on the study dated 26 th September, 1994. There does not appear to be any discrepancy between the reports of those studies and the recent CT [scan]."

8

8. Another consultant radiologist, Dr. B., reviewed the files and concluded in January, 2008 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

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

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:-

"There appears to be asymmetry between the left and right pterygoid hamuluses. This is a bony projection arising from the medial pterygoid plate which extends down toward the roof of the mouth posterior to the hard palate. Without continiguous images at higher resolution (normally we would undertake much higher resolution imaging today) it is difficult to be certain but there would appear to be a possible fracture through the hamulus on the left."

Interpretation

The appearances support the contention that the pterygoid hamuluses are asymmetrical and hamulus related pain is a recognised pain syndrome. However, this is not common and most general radiologists would, in my opinion, be unaware of this. I am the radiology lead for an atypical facial pain service and for head and neck imaging in my centre which is a large teaching hospital and also incorporates a leading teaching dental hospital where there is an interest in atypical facial pain. During my time in this post I have never been asked to specifically comment on the pterygoid hamulus on a CT scan." (emphasis supplied)

11

11. In a covering letter, Professor Hoggard added that while the earlier imaging from 1994 was not optimal, he nonetheless concurred "with Mr. Flynn's interpretation of his imaging; the pterygoid hamuluses do look asymmetrical and in this context trauma is entirely feasible". We should, perhaps, pause here to note that this letter and report can only be regarded as an important vindication of Mr. Flynn's position. Contrary to what he had been...

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