The Supreme Court has ruled that the Royal College of Surgeons in Ireland (“RCSI”) was entitled to refuse to grant Continuing Professional Development (“CPD”) accreditation to RAS Medical for a one-day event involving live cosmetic surgery.
Under powers provided for in section 91 of the Medical Practitioners Act 2007 (“Act”), the Medical Council delegated the RCSI, among other bodies, with the entitlement to accredit certain events for CPD purposes.
On 20 June 2013, RAS, a private clinic whose main focus is on cosmetic surgery, applied to the RCSI seeking CPD accreditation for a one-day event encompassing five guest speakers and three live cosmetic surgeries. The event was scheduled to take place in July 2013.
On 26 June 2013, the RCSI’s Professional Development and Practice Committee (“PDPC”) considered RAS’ application for accreditation. The minute of the meeting noted:-
“The criteria for the approval of Educational Events for CPD was discussed. It was recommended that the sponsor of the surgical event should be on the Specialist Register of the Irish Medical Council. It was agreed to amend the guidelines.”
On 28 June 2013, the Dean of Professional Development at the RCSI, Professor Tierney, wrote to RAS seeking additional information in relation to their application, which included:
On 8 July 2013, RAS provided information of the guest speakers to the RCSI and on 9 July 2013, the RCSI refused the accreditation sought for this event as none of the named consultants were registered on the Medical Council Specialist Division of the Register in Plastic Surgery. The RCSI 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”.
On 10 July 2013, RAS sought a copy of the published requirements for events to be given CPD accreditation. On 15 July 2013, the RCSI provided RAS with a copy of the RCSI’s latest version of the guidelines which had been approved at the PDPC meeting held on 26 June 2013 and only published on 15 July 2013. RAS responded noting that the guidelines provided were not in place when RAS applied for accreditation of the event on 20 June 2013.
RAS initiated judicial review proceedings against the RCSI, arguing that they had complied with the guidelines in operation at the time they made their application for CPD accreditation. RAS submitted that the Respondent was attempting to retrospectively impose new guidelines (those approved on 26 June 2013), which was impermissible.
In rejecting the challenge to the RCSI’s refusal to accredit the event, the High Court held that RAS’ application was dealt with under the original guidelines, as opposed to under the new guidelines published on the 15 July 2013. Noonan J stated that guidelines are different to rules and “although it has been said the applicant was somewhat misled by the respondent into believing that its application had failed as a result of the subsequent adoption of new guidelines, that is not in fact what actually transpired.”
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Court of Appeal
RAS appealed the High Court ruling to the Court of Appeal (“COA”). RAS again argued, amongst other things, that the decision to refuse accreditation had been made in breach of fair procedures and in particular that the decision had been made by reference to the revised guidelines which were published in July 2015. In addition, RAS argued that the High Court erred in not taking into consideration the evidence of internal RSCI communications surrounding the application which RAS had obtained through discovery.
In relation to the admissibility of the relevant discovery documentation, the COA held that the documents obtained through discovery were admissible and went towards explaining the process of consideration of the application and the adoption of the new guidelines.
The COA noted that the RCSI made the case that the PDPC made their decision on the basis of the previous guidelines however, the discovered emails demonstrate otherwise. The COA held that the RCSI wrongly applied the new guidelines which were not applicable to the application made by RAS. On that basis, the COA overturned the decision of the High Court and quashed the refusal of the application for the CPD accreditation.
The Supreme Court agreed to hear a further appeal as it noted that issues of general public importance arose concerning how certain discovered documents had come before the lower courts and had formed part of the COA judgment.
In the Supreme Court, the RCSI submitted that it was clear from Professor Tierney’s sworn testimony that the PDPC relied on the original guidelines and at no point in the decision making process to refuse RAS’ application were the new guidelines referred to. The RSCI submitted that the proper way in which to challenge Professor Tierney’s testimony was by cross examination however, RAS instead exhibited documents obtained during discovery and invited the COA to reach conclusions contrary to the sworn testimony of Professor Tierney. The RCSI also submitted that the COA erred in that without either formal proof of the relevant discovered documents or agreement as to their admission the documents were inadmissible.
In considering this issue, the Supreme Court was satisfied that no other interpretation could be given to the averment in the sworn testimony of Professor Tierney other than that the RCSI did rely on the original guidelines rather than the revised guidelines. The Court noted that it was not open to RAS to question Professor Tierney’s evidence without providing him with an opportunity to answer any suggestions which might be made to the lack of accuracy of his testimony and it was on this basis that it was not open to the COA to reject Professor Tierney’s evidence.
The court noted that the RCSI’s original guidelines provided that:
The Supreme Court was satisfied that the original guidelines would be fruitless if it did not mean that the RCSI could not require further information for the purposes of assessing if such persons are sufficient to hold an event with CPD accreditation and in those circumstances it was clearly open to the RCSI to decline accreditation if not satisfied with the personnel.
The Supreme Court concluded that the RCSI had the power to reject the application of RAS for CPD accreditation on the basis of the original guidelines and is satisfied that the RCSI was entitled to and did reject the application by applying the original guidelines. The Supreme Court allowed the appeal and made an order for dismissing the application for Judicial Review.
A key learning from this case is that the onus lies on the party who submits that a sworn affidavit should not be accepted, to ask the court to take appropriate measures such as granting leave to cross-examine, in order that a court may come to a decision as to the accuracy or otherwise of the evidence in question.
Clarke C.J stated that it was inappropriate for the COA to reject a sworn affidavit by reference either to other sworn affidavits or documentary evidence without giving the applicant or respondent an opportunity to argue why the sworn evidence should not be regarded as credible or reliable. Clarke C.J highlighted “the vital importance of there being absolute clarity as to the status of any documents which are handed into the trial judge”.
To see full Supreme Court Judgment click here
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