Ed Madden, BL, appears to be like at a current Excessive Courtroom case by which a beauty clinic sought discovery of documentation from the Medical Council in the middle of judicial evaluation proceedings.
In February 2024, the Excessive Courtroom delivered its judgment in a case by which Ras Medical Ltd t/a Auralia Beauty Clinic (‘the Clinic’) and a director of the Clinic, Dr Ahmed Salman (Dr Salman), sought discovery from the Medical Council (‘the Council’) in the middle of judicial evaluation proceedings.
The Clinic and Dr Salman had sought a evaluation of choices made throughout an investigation by the Preliminary Proceedings Committee (‘the PPC’) of the Council on the grounds of alleged bias and unfairness.
When the appliance for discovery got here on for listening to, the Courtroom was advised that in early August 2021, a affected person attended the Clinic ‘the place a person described as Dr Anous’ (referred to later within the judgment as Maher Anous) performed a medical examination.
Subsequent to the affected person making a criticism in opposition to Mr Anous, it transpired that he was not registered to practise as a health care provider in Eire. Whereas he had a certificates to practise medication in California, that certificates was ‘revoked’ in a call that took impact on August 25, 2021. By resolution of the Council, the matter was referred to the PPC.
The candidates sought discovery of three classes of doc:
- All documentation, together with minutes of conferences, data of discussions, and steps taken to make sure that the membership of the Council and the PPC wouldn’t overlap in circumstances the place the Council itself was the complainant in opposition to a registered medical practitioner.
- All documentation related to the proportion of complaints initiated by the Council, as distinct from these initiated by members of the general public or others, that are referred by the PPC to the Health to Practise Committee (‘the FPC’) and are then thought-about by that committee.
- All documentation corresponding to insurance policies, circulars and data in respect of the way by which a criticism that has been made in opposition to a medical practitioner ought to be communicated to the practitioner.
The Candidates claimed that the paperwork sought had been related and mandatory for the listening to of the substantive case as they had been involved that there was a scarcity of honest procedures within the composition of the PPC, which incorporates various members of the Council. Within the current case, three members of the PPC who thought-about the matter had earlier sat on the Council through the assembly at which the choice was taken to refer a criticism about Dr Salman to the PPC.
It was submitted that this meant that the Council was the complainant and likewise had a job within the investigation of the criticism by the PPC. The submission was based mostly on the precept nemo iudex in causa sua (one shouldn’t be a choose in a single’s personal trigger).
An extra concern on the a part of the candidates was associated to this overlap in membership. They sought statistical knowledge to assist their argument that there was institutional or systemic bias at play within the work of the PPC and the Council.
They contended that the information sought would present whether or not complaints generated by the Council had been extra prone to be referred to the FPC than complaints that come from members of the general public. In different phrases, such statistics may present that the PPC tends to lend extra weight to selections of the Council in respect of complaints.
Giving her resolution within the case, Ms Justice Mary Rose Gearty mentioned that the regulation is effectively settled in relation to the problem of discovery in judicial evaluation proceedings and the one dispute was as to its impact on the info of this explicit case. She mentioned that her ruling dealt solely with the invention software and never the substantive matter.
The Courtroom needed to think about the pleadings within the case to determine if the paperwork sought: associated to a matter of indisputable fact that was in subject; had been most likely related and mandatory; and had been proportionate when it comes to the size of what was sought. If an software was based mostly on an assertion, a courtroom may require a factual foundation for the declare to keep away from authorising ‘a fishing expedition’, by which an applicant seeks paperwork to again a speculative declare.
Referring to the criticism in opposition to Dr Salman, the choose mentioned that the minutes of Council conferences insofar as they referred to both of the 2 candidates had been disclosed to them. The minutes of a gathering held on August 19, 2021, confirmed that Mr Anous was the first concern of the Council. A choice taken by the Council on the identical date recorded that it had additionally determined to refer a matter regarding Dr Salman to the PPC pursuant to part 57 of the Medical Practitioners Act, 2007 (‘the Act’), ‘for allegedly participating Dr Anous while D Anous was unregistered.’
On being suggested by letter of the choice of the Council to refer the matter to the PPC, Dr Salman denied that he had knowingly employed a health care provider who was not registered. He supplied what he described as an impartial report into the circumstances, which he mentioned, ‘he had instantly directed’. He additionally hooked up the related employment contract of Mr Anous.
One of many points that arose was whether or not the Council was obliged to determine the related subsection of part 57 of the Act that Dr Salman was mentioned to have breached. The choose dominated that whether or not the Council was required to determine the related subsection was a matter for authorized argument (within the substantive case).
Having performed an in depth examination of the case superior on behalf of the candidates and the case superior on behalf of the Council, which included consideration of related sections of the Act and documentation already given or supplied by the Council to the candidates, the Courtroom was not glad that the candidates had met the authorized threshold for an order of discovery. 
Reference: [2024] IEHC 124
