The Court of Appeal has allowed Peter and Linda McEvoy to seek judicial review on one ground concerning the Medical Council’s decision not to take further action on their complaint about the treatment of Eileen McEvoy after her stroke in 2012.
The appeal concerned the High Court’s refusal to grant leave for judicial review. The Preliminary Proceedings Committee (PPC) had concluded there was insufficient evidence to warrant further action against two doctors, and the Medical Council adopted that conclusion in February 2019.
The McEvoys argued, among other things, that the PPC failed to consider their submissions, relied unreasonably on an independent expert report, and was affected by bias. The Court of Appeal rejected those other grounds for seeking judicial review.
The court’s concern was the PPC’s treatment of the McEvoys’ detailed response to the report by consultant neurologist Dr Nick Losseff. The PPC had invited them to comment on his report, and they sent a response running to 51 pages. The PPC’s written opinion said it had carefully considered all the material, but did not explain why it rejected the McEvoys’ response while accepting the expert’s conclusions.
The appeal judgment said that a lay person’s critique of an expert report cannot be dismissed simply because the person is not an expert. A regulator need not answer every point, but its decision should make clear that the submission was considered and, if rejected, give the reasons. The court said a general statement that all material was considered was not enough in these circumstances.
The Court of Appeal therefore found a prima facie case for leave on the ground that the PPC’s opinion, and the Medical Council’s consequent decision, were unreasonable or irrational because they gave no discernible account of how the response was considered or why it was rejected.
The court did not decide whether the complaint against the doctors was substantiated. It granted leave to seek judicial review on that single ground, allowing the review proceedings to go forward. It rejected the remaining grounds, including those concerning bias, bad faith, public policy and the regulators’ handling of other material.
The appeal court also set aside the High Court’s costs order. It indicated that the McEvoys could recover their appeal outlay, while any recovery of costs from the judicial review proceedings would depend on their eventual outcome. The court gave the parties until 16 September 2022 to request an oral hearing on costs.