RAS Medical Ltd v Royal College of Surgeons in Ireland
| Jurisdiction | Ireland |
| Judge | Mr. Justice Noonan |
| Judgment Date | 19 April 2016 |
| Neutral Citation | [2016] IEHC 198 |
| Docket Number | [2013 No. 714 J.R.] |
| Court | High Court |
| Date | 19 April 2016 |
[2016] IEHC 198
[2013 No. 714 J.R.]
THE HIGH COURT
JUDICIAL REVIEW
Professional Ethics & Regulation – The Medical Practitioner's Act 2007 – Refusal to grant accreditation – Compliance with guidelines – Breach of fair procedures
Facts: The applicant sought an order of certiorari for quashing the decision of the respondent refusing to accredit the surgical event intended to be organized by the applicant for the purpose of continuing professional development (CPD). The respondent contended that since the chief organiser for the proposed event must be on the Specialist Register of the Irish Medical Council, the chief consultant chosen by the applicant not being on that register, the requisite accreditation could not be granted. The applicant contended that since he had received accreditation for holding the same event in the past, without fulfilling the said requirement, he had legitimate expectation that the same criteria would be applicable. The applicant also contended that the said requirement would be the breach of fair procedures as the purported criterion was not notified to the applicant prior to the refusal.
Mr. Justice Noonan refused to grant an order of certiorari to the applicant. The Court held that the respondent could issue guidelines for maintaining the professional competence and standard by virtue of the power delegated to it by the Medical Council, and it was neither arbitrary nor unreasonable to set the relevant criterion keeping in mind the concern for patient's safety. The Court observed that the appropriate remedy for the applicant was to pursue an appeal as it would have been likely decided on the basis of the prior and not the new guidelines published by the respondent. The Court observed that the determination of the similar application in the past would not preclude the respondent for making new guidelines in order to set specific criteria for CPD purposes.
The applicant is a private medical clinic which provides predominantly cosmetic surgery services. The respondent is a postgraduate medical training body to whom the Medical Council has delegated certain of the Council's functions pursuant to the Medical Practitioner's Act 2007 (‘the Act’). These include the maintenance by medical doctors of their professional competence by various means including attendance at continuing professional development (‘CPD’) conferences and seminars. On the 20th of June, 2013, the applicant applied to the respondent for accreditation for CPD purposes of an event it was proposing to hold on the 27th of July, 2011, entitled ‘One Day Master Class on Polyurethane Breast Implants and Cosmetic Surgery.’
On the 9th of July, 2013, the respondent refused to accredit the event. The applicant seeks an order of certiorari quashing that decision together with various ancillary reliefs including damages.
Since the 1st of March, 2011, all registered medical practitioners in the State are required to maintain their professional competence pursuant to a scheme applicable to each registered medical practitioner. On the 2nd of March, 2011, the Medical Council, pursuant to its powers under s. 91 (4) of the Act, recognised 13 postgraduate training bodies to provide professional competence schemes and in the respondent's case, the area of professional competence with which it is concerned is surgery. The object and functions of the Medical Council are provided for in, inter alia, ss. 6 and 7 of the Act which provide:-
‘6.— The object of the Council is to protect the public by promoting and better ensuring high standards of professional conduct and professional education, training and competence among registered medical practitioners.
7.— (1) The Council shall—
(a) do all things necessary and reasonable to further its object, and
(b) perform its functions in the public interest.
(2) Without prejudice to the generality of subsection (1), the Council shall—
(a) establish and maintain the register,
(b) establish procedures and criteria for registration including the issue of certificates of registration and renewal of registration,
(c) approve programmes of education and further education necessary for the purposes of registration and continued registration,
(d) keep the programmes referred to in paragraph (c) under review,
(e) specify the standards required for the purposes of the maintenance of the professional competence of registered medical practitioners,
(f) keep the standards referred to in paragraph (e) under review..
(5) The Council has power to do anything that appears to it to be requisite, advantageous or incidental to, or to facilitate, the performance of its functions…’
Section 11 provides for the Council's power to make rules which include:-
‘(2) Without prejudice to the generality of subsection (1), the Council may make rules under this section in relation to—…
(w) the setting of criteria for the purposes of section 91 (4),
(x) any professional competence scheme…’
Part 11 of the Act is concerned with the maintenance of professional competence and provides at s. 91, inter alia:-
‘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, 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)…’
Section 88 provides that the Council shall approve the bodies which may deliver programmes of medical education and training.
Pursuant to its powers under s. 91, the Medical Council entered into a scheme of arrangement with the respondent to operate the professional competence scheme for surgery. Under the terms of the scheme, the respondent is required to operate it in line with the Council's domains of good professional practice, the first (of 8) of which concerns patient safety and quality of patient care.
As noted above, the application for CPD accreditation was made by the applicant on the 20th of June, 2013, about five and a half weeks before the planned event. A form provided by the respondent was completed by the applicant which indicated that the teaching method to be employed at the event consisted of live surgery. A copy of the programme and a list of participants were furnished. Five doctors were identified as participants including Dr. Ahmad Salman, the medical director of the applicant. Dr. Salman describes himself as a surgeon specialising in breast augmentation and cosmetic surgery. He is registered on the General Register of medical practitioners in this jurisdiction but not on the Specialist Register. Registration on the Specialist Register is not a legal requirement for the practice of cosmetic surgery in this jurisdiction.
On the 26th of June, 2013, a meeting of the respondent's Professional Development and Practice Committee (‘PDPC’) took place when a number of matters were considered including approval of applications for educational activities including that of the applicant. The minutes of the meeting noted in that regard:-
‘The Criteria for the approval of Educational Events for Continuing Professional Development (CPD) was discussed. It was recommended that the sponsor of a surgical event should be on the Specialist Register of the Irish Medical Council for the event to be approved. It was agreed to amend the Guidelines.’
Attached to the minutes is a summary of actions to be undertaken which included:-
‘Ms. O'Boyle/Professor Tierney to inform the applicant who sought approval for a master class in a Plastic Surgery procedure that the Committee agreed that a surgical event can only be approved if the sponsor is on the Specialist Register of the Irish Medical Council.’
At the material time, Ms. O'Boyle was a member of the administrative staff of the respondent and Professor Tierney was the Dean of Professional Development and Practice. Following this meeting, on the 28th of June, 2013, Ms. O'Boyle emailed a letter from Professor Tierney to the applicant in the following terms:-
‘Re: One Day Masterclass on Polyurethane Breast Implants and Cosmetic Surgery.
Dear Ms. Millea,
Thank you for submitting the above event, scheduled for Saturday 27th of July 2013 for CPD accreditation.
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.
Kind regards,
Yours sincerely,
Professor Sean Tierney
Dean of Professional Development and Practice’
The applicant responded...
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