State v Fiji Medical Council [2010] FJHC 620; HBJ01.2010 (29 October 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. HBJ 1 OF 2010

THE STATE

v

FIJI MEDICAL COUNCIL
Respondent

EX-PARTE: DR UZZAL KANTI DHAR
Applicant

Mr D Sharma for the Applicant
Mr S Banuve for the Respondent

DECISION

This is an application for leave to apply for Judicial Review of the decision of the Respondent taken on 3 December 2009 cancelling the registration of the Applicant as a specialist urologist. The Applicant also seeks a stay order in relation to the decision in the event that leave is granted.

The Applicant is seeking leave to apply for an order of certiorari to remove the decision made on 3 December 2009 and notified on 10 December 2009 into this Court and for the same to be quashed and/or set aside.

The application was dated 3 March 2010 and filed on 4 March 2010. The application was supported by an affidavit sworn by Uzzal Kanti Dhar on 3 March 2010.
The grounds upon which the Applicant seeks to challenge the decision are (a) that the Respondent did not have jurisdiction to make the decision, (b) that the Respondent failed to consider relevant matters, (c) that the decision was unreasonable, (d) that the Respondent erred in law, (e) that there was bias present on the part of the Respondent who acted in bad faith and (f) that the decision breached the legitimate expectations of the Applicant.

Having perused the papers I considered it necessary that the application be determined inter partes in accordance with Order 53 Rule 3 (3) (ii) of the High Court Rules. The application for leave was opposed by the Respondent.

An answering affidavit sworn on 30 March by Arab Khan in his capacity as Secretary of the Fiji Medical Council was filed on 31 March 2010. The applicant filed a reply affidavit sworn by Uzzal Kanti Dhar on 25 May 2010.

The hearing of the leave application took place before me on 21 July 2010. I was assisted by detailed and helpful oral submissions by Counsel. The delay in bringing down the decision can in no way be attributed to Counsel.

The purpose of the requirement of leave is to prevent either frivolous, vexatious or hopeless applications wasting the Court's time. To obtain leave the Court needs to be satisfied that an applicant has a sufficient interest in the matter to which the application for judicial review relates. This is a requirement under Order 53 Rule 3 (5) of the High Court Rules. Another requirement for obtaining leave is that the application should be made promptly which is usually taken to mean as soon as practicable or as soon as the circumstances of the case will allow and in any event within three months. Finally, the applicant must show that he has an arguable case to obtain leave to apply for judicial review.

At an early stage in the hearing of the application Counsel for the Respondent indicated that the application was opposed only on the issue of whether the material before the Court showed that the Applicant had an arguable case.

At the outset it should be stated that the requirement of an arguable case is a low threshold. The applicant need only establish that his application is not frivolous nor vexatious in the sense that it is not a hopeless case.

The limited nature of the requirement to show an arguable case was stated by Lord Diplock in Inland Revenue Commissioners –v- National Federation of Self-Employed and Small Business Ltd [[1981] UKHL 2; 1981] 2 All ER 93 at page 106:

"The whole purpose of requiring that leave should first be obtained to make the application for judicial review would be defeated if the court were to go into the matter in any depth at that stage. If, on a quick perusal of the material then available, the court thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for that relief."

The Fiji Court of Appeal in The National Farmers Union –v- Sugar Industry Tribunal and Others (unreported Civil Appeal No. 8 of 1990 delivered on 7 June 1990) at page 8 expressed the position in similar terms when it observed:

"We accept that at the leave stage of an application for judicial review the Court is not required to do more than decide whether the applicant (leaving aside the questions of locus standi and delay which are not in issue here) has shown prima facie an arguable case on the merits on each ground for relief.

....

A ready test for deciding (whether the grounds were on their face arguable on the merits and fit to be considered in the substantive hearing) is whether any particular ground could properly and reasonably be characterized as frivolous, vexatious or hopeless in the sense of being patently devoid of merit."

Even allowing for the slightly different procedure in seeking leave under Order 53 that applied at the time, I consider that the nature of the inquiry should not differ in an inter partes opposed application for leave under Order 53 Rule 3 of the present Rules of the Court.

The decision that is the subject matter of the present application was conveyed to the Applicant by letter dated 10 December 2009 from the Respondent. It stated:

"You are reminded that in Nov/Dec 2009, when Council considered your registration status as a Specialist in Urology, you undertook to enter a course of refresher training in your specialty, at a recognised centre of your choice, and that of necessity, this would be outside Fiji.

You also undertook to supply Council with a performance assessment report from the supervising authority.

At its meeting on 03.12.09, Council noted that you have not supplied such report. Consequently, you are advised that your registration as a specialist in Urology is cancelled.

You may apply for restoration of specialist status at such time as you provide appropriate assessment reports from an appropriate, competent professional body recommending that you be re-instated in the specialist register."

It was common ground that the Applicant's name has at all times remained on the register of medical practitioners.

The grounds relied upon by the Applicant are comprehensive in the sense that the Applicant seeks to rely on all the grounds that are available to challenge such a decision.

On the ground concerning the Respondent's jurisdiction the Applicant relies on section 38 of the Medical and Dental Practitioners Act Cap 255 (the Act) which, so far as is relevant states:

"38 (1) No person registered as a medical practitioner shall be entitled to style himself a ... specialist or purport to be ... a specialist in any branch of medicine or surgery unless his name is included in the roll of specialists maintained by the Medical Council under the provisions of sub section (3) of section 8.

(2) ....

(3) If any person, after due inquiry, is judged by the Council concerned to have contravened any of the provisions of this section, that Council may, if it sees fit, order that the name of any such person be deleted from the register and the Secretary shall forthwith delete that name and notify the person affected."

Section 8 (3) states:

"The Medical Council shall also form and keep a roll of those registered medical practitioners who are in the possession of sufficient higher qualifications and/or post graduate experience to be entitled, in the opinion of the Council, to be deemed specialists ... and to style themselves as such."

It was not disputed that the Applicant had been registered as a specialist by the Respondent. It is clear that the Applicant's registration as a specialist was cancelled by the Respondent because of his failure to provide a performance assessment report following his undertaking to enter a refresher training course conducted by an overseas recognised centre.

The jurisdiction given to the Respondent under section 38 (3) to order the deletion of a name from the register is in respect of any "contravention of any of the provisions of this section".

There are clearly issues concerning the jurisdiction of the Respondent to delete the Applicant's name in respect of his failure to provide the report. There is also a question concerning the word "register" that appears in section 38 (3) and also the effect of the words "any of the provisions of this section". A further question arises as to whether section 8 (3) also extends to enabling the Respondent to remove a specialist's name from the specialist register when no such power is expressly stated.

There is an arguable case that the Respondent did not have jurisdiction under section 38 (3) or section 8 (3) to delete the Applicant's name from the register of specialists.

The second ground relied upon by the Applicant is that the Respondent failed to take into account relevant factors such as (a) the Applicant's qualifications and experience, (b) the absence of any allegation of misconduct, (c) the circumstances of the audit into the Applicant's work at Suva Private Hospital and (d) the earlier submissions made by the Applicant.

Whist the letter dated 10 December 2009 would on its face support the Applicant's claims, it is clear that the Respondent did have before it the material that the Applicant claims was relevant. The letter dated 31.10.2008 from the Respondent to the Applicant states:

"The Audit Report of Dr Frank Kueppers, and your response, were tabled at today's meeting of the Fiji Medical Council.

The Council decided:

(i) That communication with you should have been far better. You were entitled to receive notice of his visit and full text of complaints against you.

(ii) We note Dr Kuepper's report, and find that considering your responses to matters related to fees etc there is no evidence at all of medical negligence of unethical behavior.

(iii) We note with approval paragraph 1 and request you to keep the Fiji Medical Council informed of the refresher training you are planning for early 2009. It would be appreciated if you notify the Fiji Medical Council of the institution, and the name of the head urologist, to allow the Fiji Medical Council to request a report at the end of the attachment.

The Council will then deliberate on your specialist status.

(iv) The Fiji Medical Council recognises the problems of an isolated specialist and notes your participation in audits and such CME as is available in Fiji.

(v) When we receive your database 2007, we will issue a file number to you."

The ground is essentially concerned with the "Wednesbury" principle of unreasonable decision making in the sense that the Respondent either failed to consider relevant factors or alternatively in considering those relevant factors came to a conclusion that no reasonable decision maker could have reached. It is clear that the affidavit material raises an arguable case on this ground.

Although the third ground is referred to as unreasonableness, as previously noted, that is more appropriately the heading of the second ground. The third ground is concerned with procedural unfairness and as a result a breach of natural justice. The Applicant claims (a) that he was not given a fair hearing, (b) that he was not given an opportunity to be present and to be heard at the hearing (c) that he was not given an opportunity to address the Respondent and (d) that he was not given any opportunity to mitigate.

It is clear that section 38 (3) provides as a condition precedent that the Respondent should make its decision "after due inquiry". To the extent that the phrase requires that the Applicant be given an opportunity to be heard before the Respondent makes its decision, there is clearly an arguable case that the Applicant has been denied natural justice in the sense that he was not afforded procedural fairness.

The fourth ground relied upon by the Applicant relates to what is stated to be an error of law and is perhaps connected to the question of jurisdiction and powers under sections 38 (3) and 8 (3) of the Act. These matters have already been discussed and it is not proposed to say anything further at this stage.

The fifth ground alleges bad faith and bias on the part of the Respondent. However, having perused the affidavit material and having considered the submissions I am not satisfied that there was any basis for concluding that there was an arguable case on this ground. It is appropriate on this point to refer to a letter dated 20 April 2010 addressed to the legal practitioner acting for the Respondent from the Applicant's legal practitioners. Paragraph 2 of that letter states:

"Previously, there was some doubt in our client's mind that there may have been a secondary agenda against him by the Fiji Medical Council when they removed him from the Specialist Roll but Mr Arab Khan's affidavit is very sincere and inclusive. Mr Khan has confirmed that if Dr Uzzal takes a refresher course then he would be re-instated into the Roll of Specialists."

At this stage it is not necessary for me to discuss the final ground relied upon by the Applicant. The issue of the Applicant's legitimate expectations is a matter that should be considered during the course of the substantive proceedings. In some respects, material to which reference has already been made supports the conclusion that an arguable case has been established.

The Respondent submitted with considerable force that there was no arguable case for the following reasons. First, the function of the Respondent is to regulate the medical profession for the benefit of the public. Secondly, this function underpins its disciplinary functions. Its purpose is not to punish practitioners but to protect the public. Thirdly, this purpose is at the core of its responsibilities under section 8 (3) and 38 (3) of the Act. Fourthly, as a result the effect of section 8 (3) is that not only can the Respondent include a medical practitioner on the roll of specialists but can also delete a name from the roll. Fifthly, in reaching its decision the Respondent had the benefit of a report prepared by an independent consultant urologist based on an audit conducted by that person and in which the Applicant had fully participated. Sixthly, the Respondent was doing no more than implementing the report, the contents of which the Applicant was well aware.

It cannot be disputed that a core responsibility of the Respondent is to regulate the medical profession for the benefit of the public.

However on a close examination of the decision taken by the Respondent, it becomes apparent that the public have neither benefited nor suffered as a result of the decision. The Applicant's name has not been removed from the roll of medical practitioners. He is still legally entitled to practise medicine and in fact legally entitled to practise in the same manner as he was doing prior to the decision. The public is able to access his services as a general practitioner. He could examine diagnose and treat patients presenting with urological complaints to the same extent as any other general practitioner could.

The effect of the decision is that the Applicant is no longer able to refer to himself, style himself or purport to practise as a specialist urologist. It means that his practice is limited to that of a general practitioner. That may have financial consequences and it does affect his professional standing and reputation.

Since the commencement of these proceedings the Medical and Dental Practitioner Decree 2010 has come into effect. The Decree repealed the Act. Schedule 3 of the Decree makes the necessary transitional arrangements that applied following the commencement of the Decree. Clause 5 (2) of Schedule 3 States:

"... any action, arbitration, proceeding or cause of action that relates to the function of the Fiji Medical Council ... and that immediately before the commencement of this Decree is pending or existing by, against or in favour of the Fiji Medical Council ..., or to which the Fiji Medical Council ... is a party, may be continued and enforced by and against the Fiji Medical Council ... under the provisions of the Decree."

Therefore these proceedings remain on foot notwithstanding the repeal of the Act.

As a result leave to move for judicial review is granted. The Respondent's decision is stayed pending the hearing of the substantive motion. Costs of this application are to be costs in the cause.

W D Calanchini
JUDGE

29 October 2010
At Suva