McEvoy v PPC and the Medical Council 29/7/2019 No. 2019/262 JR [2019] IEHC 580’

The High Court has recently refused leave to judicially review a decision of the Medical Council that no further action should be taken in relation to a complaint made by Peter and Linda McEvoy (the “Applicants”).

The High Court has recently refused leave to judicially review a decision of the Medical Council that no further action should be taken in relation to a complaint made by Peter and Linda McEvoy (the “Applicants”).

Complaint

The Applicants were the husband and daughter of Eileen McEvoy, who was hospitalised on 09 May 2012 following a stroke. The Applicants made a complaint to the Medical Council on 06 June 2017. The complaint related to the treatment of Mrs McEvoy by doctors A and B, which it was complained resulted in Mrs McEvoy being left in a comatose and vegetative state since 10 May 2012. The claim was to the effect that doctors A and B were guilty of professional misconduct and/or poor professional performance.

At its meeting on 17 January 2019, the PPC formed the opinion that no further action should be taken in relation to the complaint. The Medical Council, having considered the opinion of the PPC, wrote to the Applicants by way of letter dated 07 February 2019 (the “Letter”) outlining its decision that no further action was to be taken in relation to the complaint against doctors A and B.

Judicial Review

The Applicants then applied to the High Court seeking an order of certiorari quashing the decision of the Medical Council. The statement of grounds raised the following grounds of claim by the Applicants: (a) the need to consider all relevant evidence; (b) unreasonableness and irrationality; (c) bias and bad faith; and (d) a decision contrary to public policy which are discussed below:

1. Need to consider all relevant evidence

• The Applicants complained that there was no explicit reference in the Letter to the various responses furnished by the Applicants to the PPC. The Applicants contended that all of their submissions were therefore not taken into account by the PPC.
• The Letter itself stated however that the PPC ‘considered all of the material before it, including but not limited to the expressly referred to communications’.
• The Court confirmed that given the volume of documents before the PPC (which amounted to over 1,300 pages), it would be impossible to recite all documents which were before the PPC in the Letter. The content of the Letter did not appear to the Court to demonstrate any arguable grounds that the communications from the Applicants were not considered.
• The Applicants further claimed that the PPC should have requested a medical report from the Applicants in circumstances where the Applicants notified the PPC that they held same.
• The Court held that it was unsustainable to argue that the PPC failed to have regard to all relevant evidence by not calling for the Applicants’ report in circumstances where the Applicants for their own reasons determined not to furnish the report.

2. Unreasonable and irrational

• It was contended by the Applicants that it was unreasonable and irrational of the PPC to rely on the report of the expert, Dr Losseff in this matter.
• In his report, Dr Losseff could not find any failings on the part of Doctors A and B and opined that the deterioration of Mrs McEvoy was more likely than not to have happened as a result of the natural history of the stroke syndrome.
• The Applicants criticised the report saying that it failed to deal with some records, contained incorrect statements, and contained views inconsistent with certain guidelines.
• The Court held the Applicant’s response to the Report could not be considered as a ‘peer review’ and the existence of negligence is not dispositive of poor professional performance or professional misconduct.
• The Court referred to the case of Keegan in deciding this claim. The Court held that the decision of the PPC to rely on the report could not be said to meet the Keegan test, i.e. the decision to rely on Dr Losseff’s report could not be said to plainly and unambiguously fly in the face of fundamental reason and common sense.
• The Court also noted that to grant the applicant leave on this ground would be for the Court to entertain merits outside the scope of Keegan, rather than as is required in a judicial review, to ensure the lawfulness of the process.

3. Bad Faith and Bias

• The Court also dismissed the Applicant’s claim on the ground of bias and bad faith which arose from the Respondent’s website identifying various council members and the alleged participation of certain Council members in the decision making process. This claim by the Applicants arose due to an administrative error and was inadvertent on the part of the Medical Council. The Court also noted that the error was rectified as soon as it came to the Medical Council’s attention.

4. A Decision Contrary to Public Policy

• The final ground related to a claim that the decision of the Medical Council had wholly adverse public policy implications and that the Council’s decision was incompatible with prevailing statute, Constitutional and EU Law. Based on this, the Applicants suggested that the decisions of the PPC and of the Medical Council could not be legally correct.
• The Court held that the alleged breach of statute Constitutional and EU Law were more directed at the alleged matters which occurred on the 09 May, 2012, rather than the manner in which the Respondents conducted their various statutory obligations pursuant to the Medical Practitioners Act 2007. Therefore, the Court considered that the limited detail under the heading of a decision contrary to public policy should be considered entirely unsustainable for the purposes of grounding either an order of certiorari or mandamus, in particular having regard to the generalised reference to the quoted legislation.

The Court ultimately held that:

• “The existence of an arguable case must be reviewed in light of the dicta in O’Laoire providing for a standard of proof as being beyond a reasonable doubt at PPC Inquiry stage.

• On the facts presented to the Court, the Applicants could not maintain an arguable case that they were entitled to the reliefs and indeed the totality of the facts did not support stateable grounds for the reliefs sought.

• Leave [was] therefore refused”

The considerations by O’Regan J. at points 1-4 above are instructive in terms of the bar which needs to be met in order to obtain leave to apply for judicial review. Notwithstanding the above considerations, it is noteworthy that O’Regan J. held that in any event, the Applicants were out of time without explanation to seek leave to apply for judicial review per Order 84 Rules of the Superior Courts.

The full judgement of O’Regan J. can be accessed here.