Court of Appeal: Private medical clinic wins appeal against RCSI over training accreditation

About this case:

• Judgment:
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Allowing the appeal, Mr Justice Sean Ryan, President of the Court of Appeal, found that the Royal College of Surgeons in Ireland had applied an unjustifiable exercise in ex post facto rationalisation by adding criteria it knew the clinic could not satisfy after the application for accreditation was made.

Background

RAS Medical Limited, trading as Park West Clinic is a private medical facility specialising in cosmetic surgery, including breast implantation and reduction.

The Royal College of Surgeons in Ireland (RCSI) is the body approved by the Medical Council for certifying continuing professional development courses for doctors, pursuant to the Medical Practitioners Act 2007.

The medical director of RAS, Dr Ahmed Salman, is not a specialist plastic surgeon and not on the Specialist Register of the Medical Council – however he performs the surgery at the clinic, and the RCSI did not dispute his expertise.

In the High Court, Justice Noonan refused 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.

Application for RCSI Accreditation

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 to RCSI by email on 20th June 2013; seeking approval for this event in accordance with Guidelines issued by the College.

The Guidelines contained general instructions for organisers of events for which RCSI approval for CPD purposes was being sought.

The Court heard that 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.

Following a series of emails from both sides, on 9th July 2013, 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 asking for a copy of the published requirements that included this reason

On 15th July 2013, RCSI 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 this reply.

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:

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

High Court

Justice Noonan found that RCSI indicated from the outset that there was going to be a requirement for a person associated with the event to be on the Specialist Register.

The various expressions such as “supports the event”, “chief organiser” and “lead clinician/clinical lead” were used somewhat interchangeably but the essential requirement was the involvement of a person on the Specialist Register.

This was understood by Dr Salman and none of those involved were so registered despite the fact that the applicant had suggested to the contrary on two separate occasions.

Court of Appeal

Justice Ryan was not satisfied that the judge was correct in holding that the person who “supports the event”, the “Chief organiser” and the “lead clinician/clinical lead” were interchangeable terms.

RCSI did not deal with RAS Medical’s application under the Original Guidelines, but instead changed them for the purposes of addressing their application.

Justice Ryan held that fair procedures required the Guidelines as they stood on the date of the application to be applied. Whether the extra criterion would be desirable was irrelevant in the present case.

As such, Justice Ryan stated that the trial judge erred in failing to refer to the internal emails in the discovered documentation, which clarified the basis for the refusal.

Further, there was no suggestion here of any lack of patient protection, and the relatively recent previous approval of a similar event to the one proposed is relevant in showing that the programme did not involve anything extraordinary or experimental or dangerous.

In this case, Justice Ryan explained that RCSI had been inspired by disapproval of Dr Salman’s clinic by another consultant plastic Surgeon whose opinion was sought on the application. Thereafter the RCSI sought to find a reason to refuse – Justice Ryan held that this was an unjustifiable exercise in ex post facto rationalisation.

Allowing the appeal, Justice Ryan held that the High Court was in error in rejecting the judicial review application.