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Mr Flynn injured himself in 1987 by pressing the back of his
palate with his finger, which caused him severe pain and difficulty
swallowing. His ongoing complaints were investigated by
several medical practitioners, but no diagnosis was reached.
In 2008, he commenced medical negligence proceedings against two
hospitals and expert evidence was commissioned from a specialist UK
Radiologist. The expert reviewed CT scans from 1994 and
suspected an injury which was previously missed. However, the
expert said that it was a particularly rare type of injury, which
most general radiologists would not have identified.
On foot of this report, Mr Flynn also made a complaint regarding
two of his former medical practitioners to the Medical Council,
alleging that they had deliberately misrepresented the results of
CT scans to him. The Preliminary Proceedings Committee
("PPC") investigated the complaint and
declined to refer it to a Fitness to Practise Inquiry.
Critically, the PPC relied on the expert view that the particular
condition was so unusual that most radiologists would never have
encountered it.
Mr
Flynn sought to judicially review the PPC’s decision,
claiming that it did not give adequate reasons and that it was
unreasonable and unsustainable on the facts.
Judge
Hogan, in the High Court, stated that as a general principle the
PPC’s decisions must be bona fide, reasonable and
factually sustainable. The PPC is obliged to disclose
the essential retionale for its decision. This should be
obvious from the terms of the decision or easily inferred. Unless
adequate reasons are given, the High Court cannot assess the
lawfulness of a decision.
Judge Hogan held that in light of the expert opinion in this case,
it was impossible to find that the doctors were guilty of poor
professional performance. The PPC's decision was adequately
reasoned and capable of independent justification. Judge Hogan
therefore, declined leave to commence judicial review
proceedings.
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