The Gazette 1978

GAZETTE

APRIL 1978

assessor to forward a written opinion on the merits of the appeal. Quite the contrary. "It is much more satisfactory that the medical assessor should examine or cross- examine the witnesses rather than that he should have to prompt the appeals officer about the questions which he should ask." It is clear from the opinion of the Supreme Court however that neither of the acts envisaged by Kenny J. are within a medical assessor's capacity as an assistant to the quasi-judicial officer. As Griffin J. succinctly put it: "the function of the medical assessor appears to have been misunderstood at the hearing. His function is to assist the appeals officer to understand and appreciate the medical evidence, [judge's emphasis] see per Sullivan C .J. in Delaney v. Valentine [ 1945) I.R. 1 at p. 4. It is not his function to assist in obtaining evidence (my emphasis] to cross-examine witnesses or give evidence himself'. Henchy J. agreed. "It ill becomes an assessor who is an affiliate of the quasi-judicial officer to descend into the forensic area". It was also an abuse of his function and a breach of principles of Natural Justice for the medical assessor, behind the plaintiff's back, to forward an opinion of his own on the merits of the appeal. This also misled the plaintiff into believing that the only evidence adversely affecting the appeal was the report of the Department's own medical expert. As Henchy J. caustically remarked, "to make matters worse the source of this new evidence was the medical assessor, whose function should have been to act as a medical dictionary (and not as a medical report) available for consultation by the appeals officer." These statements will, of course, be of great importance in ensuring that irregularities of the type experienced by Mrs. Kiely do not occur again. It is unfortunate that the Supreme Court did not consider the question of whether appeals officers should be compelled to give reasons for their decisions. The point does not seem to have been argued before the Supreme Court and the desirability of this practice is highlighted by the fact that the Department refuse to make documentation relating to the appeal process available to litigants much less to the public generally. Whether the Kiely guidlines alone will drastically improve the unsatisfactory appeals officer system must be open to doubt.

appeals officer had used the written statement in a qualitatively different way, namely, to rebut Mrs. Kiely' own prima facie case. Article 11(5) did not encompass this situation. In situations such as that which arose in Kiely Henchy J. held that prima facie proof ceased to be admissible once it was controverted by oral and not necessarily sworn testimony. It should be noted that this distinction between oral and oral sworn testimony is unlikely to be important. Griffin J. remarked that normally an appeals officer will administer oaths before hearing testimony and Griffin J. found this to be an acceptable practice. Henchy J's observations on the conduct of the appeals officer were not confined to the unjustifiable weight placed upon a written statement as against oral testimony. Henchy J. hinted that, in the circumstances of the case, the written statement should not have been admissible without giving the doctor responsible for compiling it the opportunity of reviewing the report and also the chance to orally defend his professional opinion which was called into question at the hearing. "Dr. Mulcahy's written opinion was three years old. It was a hypothetical opinion given on the basis of an incomplete version of the case history . . . In short its use as a determining piece of evidence was so unfair as to invalidate the hearing." Arguably if the appeal had simply turned on the question of whether it should have been accorded any weight at all on the grounds that it was so unreliable Henchy J. may well have answered in the affirmative. This dicta suggest that a future appeal on the grounds that written testimony or written statements are so insubstantial as to be properly admissible may well be successful. It certainly suggests that the Department will not be able to rely upon written medical report in perpetuity. The relationship between principles of natural justice and the admissibility of statements on Government policy was considered by the Supreme Court in McLoughlin v. Minister for Social Welfare (19581 1.R. 1. In that case it was held that even had the written statement been admissible the appeals officer could not correctly regard it as conclusive, and the conduct of the appeals officer in McLoughlin was regarded by O'Daly J. as an abdication of his functions as a quasi-judicial officer. In Kiely too the Supreme Court averted to the role an appeals officer must play. Although the appeals officer is given a degree of latitude under the Regulations in relation to procedural matters he must allow the appellant to be heard: Re Haughey 119711 I.R. 217. Henchy J. referred to the maxim, audi alteram partem: "both sides must be fairly heard. That is not done if one party is allowed to send in his evidence in writing, free from the truth-eliciting processes of a confrontation which are inherent in an oral hearing, while his opponent is compelled to run the gauntlet of oral examination and cross examination". It seems therefore that the Department's policy of not calling its medical advisors will be reversed, for any claimant producing a witness rebutting a medical report must succeed, unless the Department can produce a medical expert to give evidence in person to the appeals officer. Appellants should always therefore ensure that their own medical experts appear at the appeal. Members of the Supreme Court reserved their most critical comments on the way in which Mrs. Kiely's appeal was heard for the conduct of the medical assessor who sat with the appeals officer. Kenny J. had refused to rule it improper for a medical assessor to cross-examine witnesses, nor did Kenny J. find it irregular for a medical

OFFICERS OF DEBATING SOCIETY

The officers of the Solicitors' Apprentices Debating Society for the 95th session (1978-79) are: Auditor, Liam Cosgrave; Treasurer, Robert Eager; Correspondence Secretary, Aideen Gahan; Record Secretary, Joseph Gavin; Ordinary Committee Member, Murrough O'Rourke.

80