Matatumua v Medical Council [2000] WSCA 3; Misc 87 2000 (18 August 2000)

IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

MISC 87/2000

BETWEEN

LE MAMEA ATA MATATUMUA
of Apia, medical practitioner
Appellant

AND

MEDICAL COUNCIL
a body constituted under the Medical Practitioners Act 1975
Respondent

Coram: The Rt Hon. The Lord Cooke of Thorndon, President
The Rt Hon. Sir Maurice Casey
The Rt Hon. Sir Gordon Bisson

Hearing: 15 August 2000

Counsel: D.A. Ewen for Appellant
G .M. Latu for Respondent

Judgment: 18 August 2000

JUDGMENT OF THE COURT DELIVERED BY LORD COOKE OF THORNDON

The appellant is a registered medical practitioner formerly employed in the Department of Health. He was the port doctor at Apia in February 1998 when he attended at the cruise ship Albatross on an elderly (and famous) German musician who had been travelling on the ship as a member of an entertainment group and was seriously ill. He arranged for the patient's admission to the national hospital. Subsequently he accompanied the patient as a medical escort on a flight to Auckland, his return air fares and accommodation in Auckland being charged to the patient, and he also rendered a considerable bill to the patient for his services. In March 1998 complaints were made to the Minister of Health and the Director-General of Health, by a consultant physician employed at the hospital and by friends of the patient, of the appellant's conduct in accompanying and charging the patient and incidental matters. The Director-General is also the Chairman of the Medical Council established by the Medical Practitioners Act 1975, section 4. The Council has the disciplinary powers characteristic of such professional bodies.

On 20 April 1998 the Director-General wrote to the appellant requesting a full report. The appellant did supply a full report by letter dated 28 April 1998, in substance denying any unprofessional conduct. On 30 April 1998 the Council appointed a subcommittee to investigate the complaints. By notice dated 3 November 1999 under the hand of its Secretary, the Council notified the appellant pursuant to section 23(3) of the abovementioned Act of allegations of disgraceful conduct in a professional respect in (inter alia) his dealings with the patient.

In the event the Council has not yet conducted any hearing of the allegations. On the present appeal, which is from a judgment of Sapolu C.J. delivered on 24 January 2000, the appellant claims that there has been a violation of his right under Article 9(1) of the Constitution to a fair and public hearing within a reasonable time by an independent and impartial tribunal. It is the delay that is the main ground of his complaint. The principal remedy sought is termination of the disciplinary proceedings by injunction, prohibition or stay.

It will be seen that there has been a delay of approximately two years four months in the hearing by the Council of these serious allegations. We will discuss the explanations for the delay shortly. At this stage we need only say that none of the delay can fairly be attributed to the appellant. On the contrary throughout the period he and his solicitors have repeatedly requested an early determination of the allegations. Indeed when in October 1999 the appellant as plaintiff commenced court proceedings against the Council, he sought as an alternative to the remedy of an injunction an order of mandamus commanding the Council to make a decision on the basis of its investigation. After a hearing on 28 October 1999 the Chief Justice, by a judgment delivered on 4 November 1999, held that neither remedy was appropriate. As regards mandamus he pointed out that it would be contrary to law to order the Council to make a decision on the basis of its investigation without following the procedural requirements as to a hearing prescribed by section 23(4). He suggested that the plaintiff should now issue a demand on the Council to perform its duties under section 23 promptly. But he also thought that, by reason of facts to which he referred, questions of possible breaches of natural justice, including possible predetermination, arose and made it appropriate to adjourn the proceedings for further submissions on those matters.

On 15 November 1999 the appellant's solicitors filed a notice of motion for constitutional and other relief. The Chief Justice conducted a further hearing on 1999, from which the judgment of 24 January 2000 now under appeal resulted.

Articles 9(1) and (2) of the Constitution provide as follows:

Right to a fair trial

9. (1) In the determination of his civil rights and obligations or of any charge against him for any offence every person is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established under the law. Judgment shall be pronounced in public, but the public and representatives of news service may be excluded from all or part of the trial in the interests of morals, public order or national security, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

(2) Nothing in Clause (1) shall invalidate any law by reason only that it confers upon a tribunal, Minister or other authority power to determine questions arising in the administration of any law that affect or may affect the civil rights of any person.

Article 9(1) is virtually a copy of Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. By section 23(1) of the Medical Practitioners Act 1975 the discretionary disciplinary sanctions provided for are removal from the register, suspension of registration for not more than 12 months, and a fine not exceeding $100. It was not disputed on the argument of the present appeal that the disciplinary proceedings against the appellant would involve a determination of his civil rights and obligations. This accords with the jurisprudence of the European Court of Human Rights, which although not binding on the Samoan courts is naturally of persuasive weight as to the interpretation of similar provisions in the Samoan Constitution.

It is true that the European Court has in the past taken the view that some purely public or administrative law issues between an individual and a state institution are outside the scope of civil rights and obligations; but professional disciplinary proceedings have been held in a number of cases to fall within Article 6(1): Konig v Germany [1978] ECHR 6; (1980) 2 E.H.R.R. 170 (medical practitioner's authorisations to practise and run a clinic); Le Compte v Belgium [1981] ECHR 3; (1981) 4 E.H.R.R. 1, (1982) 5 E.H.R.R. 183 (suspension of right to practise medicine); H v Belgium [1987] ECHR 30; (1987) 10 E.H.R.R. 339 (non-restoration to roll of advocates); Kraska v Switzerland [1993] ECHR 17; (1993) 18 E.H.R.R. 188 (employed doctor's treatment of patient without authorisation - a case raising issues somewhat similar to those in the present case); G.S. v Austria (1999) Application No. 26297/95 (licence to run a pharmacy). There is certainly no ground for adopting any narrower approach in Samoa.

It was the first of the Le Compte cases just cited that led the Chief Justice to decide against the present appellant, though sympathising with his criticism of the delay. In that case there was a three-tier disciplinary structure: Provincial Councils at first instance, Appeals Councils with jurisdiction to hear appeals from the Provincial Councils, and the Court of Cassation with power to review the legality of the decisions below and the observance of procedural requirements but unable to take cognisance of the merits of cases. The European Court of Human Rights held that there had been a breach of Article 6(1) because the applicants' case was not heard publicly by a tribunal competent to determine all the aspects of the matter. By Royal Decree all publicity before the Appeals Council was excluded in a general and absolute manner. The court accepted that the applicants could have waived the rights to a public hearing and judgment, whether expressly or tacitly, but these applicants had claimed and in effect been refused the public hearing to which they were entitled.

As to whether the Provincial Council met the requirements of Article 6(1), the court said in paragraph 51 (a):

(a) The Court does not consider it indispensable to pursue this point as regards the Provincial Council. Whilst Article 6(1) embodies the 'right to a court' (see para. 44 above). it nevertheless does not oblige the Contracting State to submit 'contestations' (disputes) over 'civil rights and obligations' to a procedure conducted at each of its stages before 'tribunals' meeting the Article's various requirements, Demands of flexibility and efficiency, which are fully compatible with the protection of human rights, may justify the prior intervention of administrative or professional bodies and, a fortiori, of judicial bodies which do not satisfy the said requirements in every respect; the legal tradition of many member States of the Council of Europe may be invoked in support of such a system. To this extent, the Court accepts that the arguments of the Government and of Mr Sperduti in his Separate Opinion are correct.

Influenced by that paragraph, which he quoted, Sapolu C.J. held that Article 9 of the Constitution is not applicable to disciplinary proceedings before the Medical Council. In one sense that view would be correct in some cases if the Council were to decline to sit in public. Section 23(4) of the Medical Practitioners Act incorporates provisions regarding a hearing in the Commissions of Inquiry Act 1964, and section 6(1)(a) of the latter Act empowers a Commission to hold the inquiry either in public or in private or partly in public and partly in private. If an accused practitioner wants and is refused a public hearing, the proceedings before the Medical Council will not satisfy Article 9(1) unless the case can be brought within the exceptions in the second part of that clause.

We do not think that the composition of the Council laid down in section 4(2) and consisting predominantly of medical practitioners would ordinarily prevent the Council from qualifying as an independent and impartial tribunal. In the present case, however, it seems that the Director-General initiated and gave evidence in proceedings against the practitioner before the Public Service Commission, which proceedings we must refer to more fully later. This would disqualify him from sitting in the proceedings under the Medical Practitioners Act, as to do so would be a breach of natural justice. If he did sit, the proceedings under that Act would likewise not satisfy Article 9(1).

We therefore respectfully agree with the Chief Justice that at the present stage it is not clear that the proposed proceedings before the Council would satisfy Article 9(1). But the matter does not end there. Under section 24 of the Medical Practitioners Act a person dissatisfied with any decision of the Council against him in disciplinary proceedings - whether removal from the roll, suspension or fine - has a right of appeal within 28 days to the Supreme Court. By section 24(3) a Judge shall hear the appeal' as soon as practicable, and may confirm, reverse, or modify the decision of the Council. His decision is final. We think that this is a full right of appeal on the merits and that the Judge could hold a full oral hearing of evidence or decide on the evidence given before the Council if adequately recorded. The appropriate procedure would be for the Judge's discretion, but the scope of his review of the Council's determination is in no way restricted. Normally such an unrestricted hearing before a Supreme Court Judge could obviously satisfy Article 9(1); this is entirely in accordance with the reasoning in Le Compte.

In the instant case there remains nevertheless the question of delay. The doctor is entitled to a hearing satisfying Article 9(1) within a reasonable time. In our view, if the history of a case is such that a hearing before Supreme Court Judge cannot take place within a reasonable time after the complaint has been first notified to the practitioner, his rights under the Article will be denied. The reasonableness or otherwise of the time is a question of fact dependent on the particular circumstances. On the face of it, a delay of the length that has already occurred here, which would inevitably be significantly increased by an intermediate hearing before the Medical Council, is not reasonable. The issue reduces to whether in this case the overall delay is acceptable.

Various factors have contributed to the delay as follows.

In the first place the Medical Council appointed a subcommittee to investigate the case in a preliminary way. As the Chief Justice pointed out, the Medical Practitioners Act does not provide for that procedure. It is not necessarily objectionable and may be convenient; but if it is adopted the subcommittee should proceed expeditiously and any appearance of predetermination by the Council should be avoided. In this case expedition was lacking and there is ground (which we need not discuss in view .of our decision on overall delay) for suggesting an appearance of predetermination by the Council.

In a letter dated 14 June 1999 to the appellant's solicitors; the Secretary of the Medical Council expressed regret at the delay in replying to a letter of 17 May 1999. He referred to work commitment and intermittent absence from work because of illness and went on to say that the Council had not yet completed its investigations on the allegation against Dr Matatumua. As the matter had been under investigation at that stage for some 15 months, this response was plainly unsatisfactory.

In January 1999 the Director-General sought the permission of the Public Service Commission to suspend the appellant and to initiate an investigation against him under the Public Service Act 1977. In February 1999 the Commission suspended him from his post as port doctor. Charges were served on the appellant under that Act, including a charge relating to his conduct regarding the German patient, and after a hearing in September 1999 the Commission approved the reinstatement of the appellant but determined that his suspension should be treated as leave without pay. He had been paid no salary in the meantime. The Commission also fined him $400 and ordered that he be issued with a stern warning and that future repetition of similar offences would result in immediate termination of services.

In November 1999 at the instance of the Director-General the Commission approved the non-renewal of the appellant's contract as a consultant. Shortly before this the Medical Council had issued the charges under the Medical Practitioners Act. The inference is thus open that, despite the Secretary's letter of 14 June 1999, the Council had deferred its investigation while the proceedings under the Public Service Act were in progress. We accept that cases may arise in which it may be reasonable to await the outcome of disciplinary action under the Public Service Act before determining whether to proceed under the Medical Practitioners Act as well. In the particular circumstances of the present case, however, we think that it would now be oppressive to (in effect) try the appellant again on charges already dealt with by the Public Service Commission. That is to say, his constitutional right to a determination under the Medical Practitioners Act within a reasonable time would be infringed by any further proceedings. The delay since the Commission's determination, which as already mentioned cannot be fairly ascribed to the appellant, has inevitably aggravated the position.

The overall delay and its likely psychological effects are in themselves prejudicial; and there is indeed medical evidence that the appellant's health has suffered. The effect on the possibilities for him of a future career in medicine is also not to be overlooked.

Borderline cases can arise when the remedy for alleged unreasonable delay is to require an early hearing. But in cases where it is clear that the delay has been unreasonable a standard remedy is a stay. There is a large body of Canadian case law to that effect, a recent example in the Supreme Court of Canada being Maracle v The Queen (1998) 122 C.C.C. (3d) 97. The same approach was taken in New Zealand in Martin v Tauranga District Court [1995] 2 N.Z.L.R. 219. In the present case we think that a stay is the appropriate remedy under Article 4 of the Constitution.

Accordingly the appeal will be allowed and it will be ordered that all proceedings under the Medical Practitioners Act 1975 against the appellant in respect of his conduct concerning the patient referred to in this judgment be permanently stayed.

Having succeeded in his application for constitutional relief, the appellant is entitled to an order for costs against the Medical Council for the proceedings heard in the Supreme Court on 3 December 1999 and in this Court on 15 August 2000. If the parties are unable to agree on an amount, counsel may submit memoranda and this Court will fix the amount after considering such memoranda.

Solicitors:
Kruse, Enari & Barlow, Apia, for Appellant
Attorney-General's Office, Apia, for Respondent