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GAZETTE
APRIL 1978
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
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.
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.
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