RAS Medical Ltd trading as Park West v Royal College of Surgeons in Ireland

• Jurisdiction: Ireland
• Judge: The President
• Judgment Date: 31 July 2017
• Neutral Citation: [2017] IECA 228
• Date: 31 July 2017
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2017] 228 [2016 No. 304]

[2017] IECA 228

COURT OF APPEAL

Ryan P.

The President

Peart J.

Irvine J.

Neutral Citation Number: [2017] 228

[2016 No. 304]

BETWEEN

RAS MEDICAL LIMITED, TRADING AS PARK WEST CLINIC

APPELLANT

AND

THE ROYAL COLLEGE OF SURGEONS IN IRELAND

RESPONDENT

Judicial review – CPD accreditation – Fair procedures – Appellant seeking judicial review of the refusal by the respondent of CPD accreditation – Whether the respondent made its decision in breach of fair procedures

Facts: The appellant, RAS Medical Ltd, operates Park West Clinic, a private medical facility specialising in cosmetic surgery including breast implantation and reduction. The medical director of the clinic is Dr Salman who performs the surgery. The appellant appealed to the Court of Appeal from the judgment of Noonan J in the High Court refusing judicial review of the refusal by the respondent, the Royal College of Surgeons in Ireland (RCSI), of accreditation of a one-day course that Dr Salman and the clinic were organising in respect of breast implant cosmetic surgery. The central question on this appeal was whether the Professional Development Committee of RCSI made its decision to refuse sanction for the RAS event in breach of fair procedures as required by law.

Held by Ryan P that the Court could not agree with the High Court’s conclusion that the Committee applied the existing guidelines for the approval of educational events for CPD accreditation and not the newly minted version that followed the Committee’s meeting of 26th June 2013. Ryan P held that while it was true that the trial judge thought that RAS had been misled into a mistaken belief that RCSI had changed the guidelines for the purpose of dealing with the application, the Court did not think that was a mistaken belief, a fact made clear from an analysis of the email chain. Ryan P held that since the hearing in the High Court was on affidavit, the Court of Appeal was in as good a position to draw inferences from the facts as was the High Court.

Ryan P held that the High Court was in error in rejecting the judicial review application and the Court of Appeal allowed the appeal.

Appeal allowed.

JUDGMENT of The President delivered on 31st July 2017

1 RAS Medical Ltd. operates Park West Clinic which is a private medical facility specialising in cosmetic surgery, including breast implantation and reduction. The medical director of the clinic is Dr. Ahmed Salman who performs the surgery. He is not a specialist plastic surgeon and not on the Specialist Register of the Medical Council, but he claims to be highly experienced and competent in this field and says that he has done a large number of successful operations. The appeal with which we are concerned is from the judgment of Noonan J. in the High Court refusing judicial review of the refusal by RCSI of accreditation of a one-day course that Dr. Salman and the clinic were organising in respect of breast implant cosmetic surgery.

2 The Royal College of Surgeons in Ireland is the body approved by the Medical Council for the purpose of certifying continuing professional development courses for doctors in the specific area which we are dealing with here. The delegation is laid out in the Medical Practitioners Act 2007 which reads:

‘91. — (1) It shall be the duty of the Council to satisfy itself as to the ongoing maintenance of the professional competence of registered medical practitioners…

(4) The Council may, with the consent of the Minister and in accordance with the relevant criteria specified in rules made under section 11 —

(a) recognise subject to conditions attached to the recognition of, amend or remove conditions attached to the recognition of, or withdraw the recognition of, a body approved under section 88 (2)(a)(i)(II) or 89 (3)(a)(ii) with which the Council may make and carry out an arrangement with for the purposes of assisting the Council to perform its duty under subsection (1), or

(b) refuse to recognise a body approved under section 88 (2)(a)(i)(II) or 89 (3)(a)(ii) as a body with which the Council may make and carry out an arrangement with for those purposes.

(5) The Council shall monitor and assess the performance of bodies recognised under subsection (4) based on the criteria referred to in that subsection.’ [Emphasis added]

3 RAS Medical planned to run a one-day course during which three live surgeries would be performed. The “One-Day Master Class on the Polyurethane Breast Implants and Cosmetic Surgery” was scheduled for 27th July 2013 and Dr. Salman sent in his application by email on 20th June 2013. He sought approval for this event and he made his application in accordance with Guidelines issued by the College. These contained general instructions for organisers of events for which RCSI approval for CPD purposes was being sought. Dr Salman and his clinic had organised a similar event previously in 2011 and had obtained College approval for CPD purposes for attendance at that event. The Guidelines did say, however, that approval of an event on a previous occasion did not mean that it would be forthcoming for another one; in each case, a new application had to be made.

4 The Professional Development and Practice Committee of RCSI, through its Secretary, Ms. Marie O'Boyle, emailed Dr. Salman on 28th June 2013 seeking additional information: a list of sponsors; a list of speakers/facilitators with details about them; the name of a consultant on the Medical Council Specialist Division of the Register in Plastic Surgery who supported the course. In relation to the latter, there was no such consultant, although Dr. Salman was satisfied that all the experts involved in the event were distinguished in their field. On 8th July 2013, RAS submitted the CVs of three of the five speakers. Dr. Jawad was presented as being on the Irish Medical Council Register, but this was not in fact the case. Dr. Salman did not claim that Dr. Jawad was on the Specialist Register, which was the reference in the College email, but he did say that he was on the Irish Register. He wrongly assumed that Dr. Jawad's CV was correct and accurate. In fact, it would appear that Dr. Jawad had previously been on the Irish Register. However, the fact is that while was no longer on the Irish Medical Council Register of General Practitioners, he was a Fellow of the RCSI. None of that is particularly relevant at present, but it has some materiality at a later stage.

5 On 9th July 2013, Professor Sean Tierney, Dean of Professional Development and Practice of the RCSI emailed RAS saying that the event could not be approved for CPD accreditation as it was a requirement of the Professional Development Committee that the Chief Organiser of the event put forward for accreditation should be on the Specialist Register in Plastic Surgery and this was not the case. Dr. Salman responded the next day, 10th July 2013, asking for a copy of the published requirements that included the reason given in the email of the previous day. In a further email, he asked for a reply before close of business on 11th July because the event was organised for 27th July. The reply came on 15th July 2013 from Professor Tierney who sent a copy of ‘the latest version’ of the Guidelines for the approval of educational events for CPD accreditation which, he said, had been approved at a recent meeting of the Professional Development and Practice Committee. Dr. Salman's IT consultant said that the new Guidelines were uploaded to the RCSI website only at 11.15am on 15th July 2013, the very day of Professor Tierney's reply.

6 The importance of the new Guidelines is that they include under the heading “Criteria for Approval of CPD Events” an entirely new enumerated requirement as follows:

‘8. The Clinical Lead/Chief Organiser who is responsible for the application should be on the Specialist Division of the Medical Council Register.’

7 The essential period with which we are concerned is from 20th June 2013 to 15th July 2013. The applicant's primary complaint is that the College, through its Professional Development and Practice Committee and the Dean, Professor Tierney, changed the rules contained in the Guidelines for the purpose of refusing his application. While the query letter of 28th June 2013 asked for the name of a consultant on the Specialist Division of the Register in Plastic Surgery who supported the course, that was a different thing from the actual requirement as specified in the new Guidelines. That requirement was not contained in the old Guidelines in any shape or form. Indeed, the query letter of 28th June did not actually say that having a specialist plastic surgeon who supported the course was a necessary precondition of approval. However that may be, the point that is made on Dr. Salman's behalf and that of RAS is that the specific requirement contained in the new Guidelines of 15th July 2013 and the stated reason for refusal of CPD sanction, was not in the previous Guidelines according to which the application was made.

8 The RCSI maintains that it was entitled under the original guidelines to impose this condition in the interest inter alia of patient safety which is a proper matter for the committee to take into account and which is not only legitimate, but is a requirement on the RCSI in its role as delegated by the Medical Council. Safety of patients was not raised with RAS or Dr. Salman prior to rejection of their application but it was mentioned when the prospect of litigation arose. The College in its affidavits by Professor Tierney does not question Dr. Salman's own expertise. It is clear from the affidavits that if issue had been joined on the matter he would have been in a position to offer reassurance based on the expertise that he himself possesses as the person who was going to carry out the procedures, and also that his colleague visitors were amply...