Samoa Medical Clinic v Puni [2015] WSDC 5 (26 August 2015)

DISTRICT COURT OF SAMOA
Samoa Medical Council v Puni [2015] WSDC 5

Case name:	Samoa Medical Council v Puni
Citation:	[2015] WSDC 5
Decision date:	26 August 2015
Parties:	SAMOA MEDICAL COUNCIL v LEMAMEA EMOSI PUNI of Tiapapata, Medical Practitioner
Hearing date(s):	6th & 26th August 2015
File number(s):
Jurisdiction:	CIVIL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	DISTRICT COURT JUDGE VAAI
On appeal from:
Order:	- In view of the above ruling in response to the first submission by the respondent, we do not consider it necessary or appropriate to proceed further to discuss his second submission that the delay in filing the charges amounted to a breach of his right to a fair trial under Article 9 of the Constitution.
Representation:	D Kerslake and S Ainuu for applicant Respondent in person
Catchwords:	Abuse of Process – right to a fair trial – disciplinary proceedings
Words and phrases:	breaching certain professional standards of the medical profession under s. 17 of the Medical Practitioner’s Act 2007
Legislation cited:	Medical Practitioners Act 2007.s24(3)
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER:
of a hearing of the Disciplinary Committee pursuant to section18Healthcare Professionals Registration and Standards Act2007

BETWEEN

SAMOA MEDICAL COUNCIL
Applicant

A N D

LE MAMEA EMOSI PUNI of
Tiapapata, Medical Practitioner
Respondent

Hearing: 6^th & 26^th August 2015
Decision: 26^th August 2015

WRITTEN DECISION OF COMMITTEE (WITH REASONS)

Introduction

1. On the 26^th of August 2015 after we heard submissions from the parties, we decided to quash the three remaining charges denied by the respondent on the basis the charges as laid were an abuse of process. We equally decided to stay proceedings on the same said charges because of the delay in bringing the charges which we felt breached the respondent’s right to a fair trial under Article 9 of the Constitution. We advised after our decision had been delivered orally that we would provide a written copy of a full decision explaining our reasons for ruling the way we did. This is that written decision.

Background

2. On the 29^th of July 2005 the respondent was charged by the police for indecently assaulting a patient at Medcen Hospital on the 18^th of July 2005.
3. Fourteen months later, a trial before the Chief Justice took place from the 3 – 10 October 2006. At the conclusion of the hearing the charge against the respondent was dismissed on the basis there was no case to answer.
4. Eleven months later on the 14^th of September 2007, the Court of Appeal allowed an appeal by the Attorney General against the dismissal and ordered a retrial.
5. Some three years and six months later on the 29^th of March 2011, the Court was advised by counsel for the defence that an application to stay the proceeding would be filed because of unreasonable delay.
6. On the 29^th of May 2012 Slicer J dismissed the stay application. He also conducted the hearing from the 29 – 30 May and from the 2 – 6 July 2012 of the indecent assault charge.
7. On the 24^th of August 2012 the respondent was convicted of the charge of indecent assault.
8. On the 28^th of August 2012 the respondent lodged an appeal to the Court of Appeal against his conviction. By letter of even date, the Registrar Healthcare Professionals wrote to the Chairperson of the Medical Council advising the Council of the respondent’s conviction by the Supreme Court.
9. By letter dated the 30^th of August 2012 (approximately 7 years 1 month after the respondent was first charged by the Police for indecent assault), the Medical Council informed the Registrar Healthcare Professionals of resolutions it made at its meeting held the same day. The Council resolved that (i) the respondent had committed serious breaches of professional standards under Part V Sections 17(1)(a) and 17(1)(c) the Medical Practitioners Act 2007 (based on the same facts as/or in relation to the indecent assault charge), (ii) to initiate proceedings against the respondent under the Healthcare Professionals Registrations and Standards Act 2007 for he breaches, and (iii) to inform the respondent his certificate to practice as a medical practitioner was suspended effective from the date of the letter - 30/8/2012.
10. By letter dated 3^rd September 2012 the Registrar Healthcare Professionals informed the respondent of the breaches of the Medical Practitioners Code of Professional Standards and invited the respondent to respond in writing within 14 days to the Medical Council.
11. By letters dated 10^th September 2012 the respondent wrote to the Registrar Healthcare Professionals and the Medical Council seeking deferring the disciplinary proceedings against him pending the determination of his appeal to the Court of Appeal.
12. On the 23^rd of November 2012 the respondent’s appeal to the Court of Appeal against his conviction was dismissed.
13. On the 21^st of December 2012 the respondent was sentenced by his Honour Slicer J for the indecent assault charge to a term of imprisonment for 12 months.
14. By letter dated the 12^th of February 2013 the Registrar Healthcare Professionals resubmitted to the respondent the charges and a time frame for him to respond. It appears from the record that the respondent did not respond.
15. By letter dated the 13^th of July 2015 the respondent was informed that the date of hearing of the charges brought by the Medical Council against him was 6^th August 2015.

Charges

16. The respondent is charged with four counts of breaching certain professional standards of the medical profession under s. 17 of the Medical Practitioner’s Act 2007. He admits the charge brought under s. 17(c) Medical Practitioner’s Act of a breach of professional standards because he has been convicted of a criminal offence. He however denies the remaining charges brought under s. 17(a) of the Act. In respect of the three charges he denies, the respondent submitted that they ought to be stayed, quashed, or dismissed.

Discussion

17. First, the respondent submitted that the remaining charges he denies are defective and an abuse of process because he is charged under the Healthcare Professionals Registration and Standards Act 2007 for an offence he committed in July 2005. In other words, because he was not charged for breach of professional conduct under the relevant but now repealed Medical Practitioners Act 1975 (which was the applicable legislation in effect at the time of his offending) the Medical Council cannot now bring proceedings against him under the current Healthcare Professionals Registration and Standards Act 2007.
18. In response counsel for the applicant submitted that the Medical Council can bring the charges under the Healthcare Professions Registration and Standards Act 2007 because of S 17(2) and S 24(3) of the Medical Practitioners Act 2007.
19. Section 17(2) of the MP Act 2007 in our view does not help the applicant here because it simply provides for the procedure to be taken when disciplinary proceedings are undertaken against a medical practitioner under the Act, not when proceedings are in fact brought.
20. Section 24(3) of the MP Act states:
    • “All determinations of the Medical Council made under the Medical Practitioners Act 1975, and all disciplinary proceedings and criminal proceedings being undertaken by or on behalf of the Medical Council or arising out of or under the Medical Practitioners Act 1975 as at the commencement of this Act are deemed to have been and taken under this Act.”
21. Counsel submitted that filing of the remaining charges seven years after the offence took place is saved by a literal interpretation of S 24(3) because of the words “all disciplinary proceedings ... being undertaken by or on behalf of the Medical Council or arising out of or under the MP Act 1975 as at the commencement of this Act are deemed to have been and taken under this Act.”
22. It is not disputed by the Medical Council that it was able to file disciplinary proceedings for misconduct which breached the standards of the medical profession under the now repealed MP Act 1975 (and still can under the 2007 Act), independently of any criminal proceedings arising from the same facts and circumstances as the criminal proceedings.
23. The first and more obvious difficulty with the interpretation counsel invites the Committee to accept is, if the intended meaning of S 24(3) is as counsel argues, it would literally mean that the Medical Council can effectively still up to now file against any medical practitioner for any alleged breach of professional standards committed or arising out of or under the MP Act 1975. That is, for any alleged breach of professional standards or conduct which occurred between 1975 (when the MP Act 1975 came into force) and 2007 (when it was repealed), it is still open for the Medical Council to file disciplinary proceedings under S 24(3) of the current Medical Practitioners Act 2007 when it considers appropriate to do so. This in our respectful view is not the legislative intention of S 24(3) of the MP Act 2007 with specific regard to the exercise by the Medical Council of its powers and responsibilities to discipline its members and the procedural processes within which it can exercise such powers. The power is statutory and must therefore be exercised fairly, responsibly and more importantly, reasonably.
24. The second difficulty is this. The words “...or arising out of or under the Medical Practitioners Act 1975...” the applicant relies on should not be read in isolation but in the context of the preceding words of the section. Therefore under the contextual interpretation of S 24(3) of the Medical Practitioners Act 2007, only “ disciplinary proceedings....undertaken by the Medical Council or arising out of or under the Medical Practitioners Act 1975 as at the commencement of the 2007 Act are deemed to have been taken under the new Act (emphasis ours). The operative words are “disciplinary proceedings”, meaning only proceedings....arising out of or under the 1975 Act (not mere professional misconduct which occurred or arose out of or under the 1975 Act) are saved by S 24 (3) of the 2007 Act. The clear aim of the section in our view is to save actual disciplinary proceedings undertaken by the Medical Council....or arising out of or under the 1975 Act as at the commencement of the 2007 Act not the power of the Medical Council to file proceedings against the respondent for misconduct which arose out of or under the 1975 Act before it was repealed, and for which no actual disciplinary proceedings were commenced or filed as at the commencement of the 2007 Act.
25. The record clearly shows that the only proceedings filed and in existence as at the commencement of the MP Act 2007 Act was the criminal prosecution of the respondent filed by the police for breach of the Criminal law and not on behalf of the Medical Council. The record further shows that there were no disciplinary proceedings commenced or brought by the Medical Council against the respondent as at the commencement of the MP Act 2007. This was despite the fact the respondent’s offending on which the remaining charges is based took place in July 2005, as well as the added fact, the Medical Council had the power to bring about disciplinary proceedings against Dr Puni independently of the criminal proceedings, but did not.
26. We were advised by counsel for the applicant that the reason the Medical Council did not file the remaining charges against the respondent for breach of professional standards was the Council was not “aware” of the nature or particulars of the complaint due to the name suppression orders the Court imposed on the criminal proceedings before it. With respect, ignorance by the Medical Council of the complaint which triggered the police investigation and leading up to the charge of indecent assault is neither convincing nor a credible explanation for the Council’s failure to exercise its statutory duty to investigate on its own independently of the police investigation, with a view towards disciplinary proceedings against the respondent.
27. As already explained, the respondent was only made aware of the disciplinary charges against him by the Registrars letter of the 3^rd of September 2012.
28. For the above explained we do not consider ourselves able to accept the first submission by counsel for the applicant on the appropriate interpretation and saving effect of section 24(3) Medical Practitioners Act 2007. Section 24(3) Medical Practitioners Act 2007 does not save the late filing of the charges leading up to the disciplinary proceedings against the respondent. Also given the undisputed fact that the Council had (and still has) the authority to initiate its own investigation and bring about disciplinary proceedings against its members independently of the police, we consider the circumstances leading up to these proceedings, the filing of the charges denied by the respondent amounts to an abuse of process. On that basis, the remaining three charges against the respondent are deemed defective and are consequently quashed.
29. In view of the above ruling in response to the first submission by the respondent, we do not consider it necessary or appropriate to proceed further to discuss his second submission that the delay in filing the charges amounted to a breach of his right to a fair trial under Article 9 of the Constitution.
30. We wish to take this opportunity to thank counsels for their assistance to the Committee.
    

Vaepule Vaemoa Va’ai

CHAIRMAN OF THE COMMITTEE

Lealiifano Dr Iopu Tanielu
MEMBER

RN Ms Matamua Iokapeta Enoka
MEMBER