RAS Medical Limited v The Royal College of Surgeons in Ireland,  IESC 4 (2019)
THE SUPREME COURTAppeal No: 2017/147
Finlay Geoghegan J.
RAS Medical Limited trading as Park West Clinic
Royal College of Surgeons in Ireland
Judgment of the Chief Justice, Mr. Justice Clarke, delivered the 5th February, 2019
1.1 A central issue in these proceedings generally concerns the question as to which of two guidelines were applied in relation to an application for accreditation of an event involving live plastic surgery. While that straightforward issue of fact would not have given rise to an issue of general public importance justifying leave to appeal to this Court, the manner in which an appeal by the applicant/respondent (“RAS”) was dealt with by the Court of Appeal led to a question of more general application concerning the way in which the Court of Appeal approached the facts.
1.2 Under powers provided for in s. 91(4) of the Medical Practitioners Act 2007, the Medical Council has delegated to the appellant/respondent (“RCSI”), amongst other bodies, the entitlement to accredit certain events for continuing professional development (“CPD”) purposes. RAS is a private medical clinic and applied for such a CPD accreditation in respect of the relevant event. On the 9th July 2013, RCSI refused the accreditation sought.
1.3 RAS brought judicial review proceedings on a range of grounds, all of which were rejected by the High Court (Noonan J.) (RAS Medical Limited v. Royal College of Surgeons in Ireland  IEHC 198).
1.4 From that decision of Noonan J., RAS brought an appeal to the Court of Appeal. In the main, the grounds advanced on behalf of RAS on its appeal were rejected. However, the Court of Appeal found that RCSI had, as a matter of fact, wrongly applied new guidelines which, it was said, were not applicable to the application made by RAS. On that basis, the Court of Appeal overturned the decision of the High Court and quashed the refusal of the application for CPD accreditation (Ryan P. on behalf of the Court) (RAS Medical Limited v. Royal College of Surgeons in Ireland  IECA 228). It is as against that decision of the Court of Appeal that RCSI has brought a further appeal to this Court. In order to understand the issue of general importance which arises it is appropriate to turn, first, to the determination granting leave to appeal.
Leave to Appeal
2.1 By determination dated the 2nd February 2018 (RAS Medical Limited v. The Royal College of Surgeons Ireland  IESCDET 26), this Court granted leave to RCSI to appeal the decision of the Court of Appeal. The Court stated as follows at paras. 7 and 8 of that determination:-
“[T]he Court is satisfied that the circumstances in which certain discovered documents came to be before the courts below, be considered by those courts and form the basis, at least in part, of the judgment, gives rise to an issue of general public importance not least because it is of some significance to bring further clarity to the way in which discovered documents can be deployed in all proceedings but in particular proceedings which are, prima facie, likely to be heard on affidavit.
The Court will, therefore, grant leave to appeal on the grounds set out in the notice of application for leave to appeal. However, it should be emphasised that it will be open to the case management judge to refine or adjust those grounds so as to ensure that the broad issue identified in this determination as justifying leave to appeal can properly be addressed by the Court.”
2.2 The grounds as set out in the notice of application for leave to appeal were as follows:-
“The Respondent will contend that it was never appropriate for a Court to reach a finding of fact contrary to the sworn testimony of a witness based merely upon documents which have not been put to the witness in cross-examination. Indeed, in judicial review it has long been recognised that discovery is a rarity because the facts can seldom be a matter of relevant dispute. In KA v. Minister for Justice  2 IR 93 Finlay Geoghegan J approved a test articulated by Bingham M.R. in R. v Secretary of State for Health, ex parte Hackney London Borough Council when he said:
‘Have they raised a factual issue of sufficient substance, or adduced evidence which grounds a reasonable suspicion of unlawfulness, such that the application cannot be fairly resolved without discovery.’
In this case the Applicant succeeded in persuading the Court that discovery was required for the very reason that there was a factual issue as to which guidelines had been applied. However, having obtained that discovery they chose not to cross-examine Professor Tierney. His sworn testimony was therefore rejected on the basis of a review of the documents. Disputed facts, especially ones going to the heart of the resolution of the case at hearing ought not to be determined in this way.”
2.3 The factual circumstances giving rise to that issue need next be explained.
3.1 As noted above, on the 20th June 2013, Dr. Ahmed Salman (“Dr. Salman”), the Medical Director of RAS, applied on behalf of RAS to RCSI for CPD accreditation for a one-day master class in plastic surgery which was to involve three live surgeries. Five speakers were to appear at the event, one of whom was Dr. Salman.
(a) Correspondence between the Parties
3.2 On the 28th June 2013, Professor Sean Tierney, the Dean of Professional Development and Practice of RCSI (“Professor Tierney”), emailed Dr. Salman seeking additional information in relation to the application. The email stated:-
“This application was discussed and reviewed at our recent Professional Development and Practice Committee. It was recommended that before we can approve this event for CPD credits, we would require the following information:
• A list of sponsors and how they are connected to the event e.g. unrestricted grant, sponsorship of prizes, breaks, meals.
• A list of speakers/facilitators which include details about the posts they hold, where they are based and what speaking experience they have in relation to the topic discussed.
• A name of a consultant who is on the Medical Council Specialist Division of the Register in Plastic Surgery who supports this course.
On receipt of this information we will process your application for CPD credits.
If you require any further clarification on the above, please don’t hesitate to contact me.”
3.3 On the 8th July 2013, Dr. Salman emailed RCSI, attaching CVs for three of the five speakers at the event. The CV of Dr. Mohammad Jawad stated that he was on the Irish Medical Council register, which was incorrect. Later that day, a further email was sent from RAS to RCSI attaching the CVs of the two other speakers at the event. This email further stated, “The conference has two world renowned plastic surgeons on the faculty, Dr Mohammad Jawad and Dr Constatine Stan. Dr Jawad is on the medical council register and supports this master class.” It is accepted that Dr. Jawad was not in fact on the Medical Council register, as suggested in these emails.
3.4 On the 9th July 2013, Professor Tierney emailed Dr. Salman indicating that, following a review by the RCSI Professional Development and Practice Committee (“PDPC”) of the application and the information supplied, the application for CPD accreditation had been refused. The email stated, “It is a requirement of the Professional Development Committee that the Chief organiser of the event should be on the Specialist Register in Plastic Surgery and as this is not the case, we are unable to approve this event for CPD purposes.”
3.5 On the 10th July 2013, Dr. Salman replied to Professor Tierney’s email, stating:-
“Thank you for your email below, please forward me the published requirements for CPD points approval, that clearly [state] the reason you have given below.
The points are given for the information quality and the standards of the speakers. You have sanctioned CPD points for GP training organised by private hospital.
I would also wish to request a meeting with Prof Tierney to further discuss the issue once I have received your reply for the requirements above.”
3.6 On the 15th July 2013, Professor Tierney replied to the above email, stating:-
“Thank you for your email. As requested, please find attached the latest version of the Guidelines for the approval of Educational Events for CPD which were approved at a recent meeting of the Professional Development & Practice Committee.
If you wish to appeal the decision outlined in my email dated 9th July 2013, you may appeal the decision in writing. Such appeals should be directed to:
The Chair, Professional Development Committee, RCSI, 123 St Stephens Green, D2.
The Appeal will be considered at the next meeting of the Committee.”
3.7 The guidelines attached to the email were new guidelines. These guidelines were not available online until the 15th July 2013. The guidelines stated as follows under the heading “Criteria for Approval of CPD Events”:-
“8. The Clinical Lead/Chief organiser who is responsible for the application should be on the Specialist Division of the Medical Council Register.”
3.8 Dr. Salman responded to Professor Tierney’s email on the same day, stating:-
“I would like to draw your attention, that the new criteria was not published on the day we applied nor the date you have sent us your decision of refusal. These new guidelines only became public in the last 24hrs. I would also like to draw to your attention that the chairman of this meeting is Dr C Stan who is a specialist plastic surgeon. Also Mr Mohammed Jawad is also a plastic surgeon and on the irish medical council specialist register. I am sure you are aware of these facts from their CV. The organiser is Park west Clinic.
I have forwarded the matter to my legal team to deal with it.”
3.9 On that same day, solicitors acting for RAS wrote to Professor Tierney and also to...
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