A. T. S. PAUL, Petitioner, and E. M. WIJERAMA and 9 others, Respondents

069-NLR-NLR-V-75-A.-T.-S.-PAUL-Petitioner-and-E.-M.-WIJERAMA-and-9-others-Respondents.pdf


361
rnnl v. Wijerama
1972Present: Alles, J., and Wljayatilake, 3.
A. T. S. PAUL, Petitioner, and E. M. WIJERAMA and 9 others,
Respondents
<S. C. 200171—Application for Mandates in the nature of Writsof Prohibition, Certiorari and Mandamus under andin terms of Section 41 of the Courts Ordinance (Cap. 6)
Medical practitioner—Charge of infamous conduct in a professional respect—Inquiryby Medical Council silting as a Disciplinary Committee—Judicial nature of theCommittee's functions—Members of the Committee—Absence of some of themat material parts of the inquiry—Effect of disqualifying them from participatingin the final decision—Invalidity of the decision of the Committee as a whole—Natural justice—Breach of it—Certiorari—Availability notwithstanding rigidof appeal to Minister whose decision shall be final—Penal Committee—Membersof it sitting subsequently as Judges in Disciplinary Committee— Impropriety—Medical Ordinance (Cap. 105), ss. 14, 18, 33 (e)—Medical Disciplinary (Proce-dure) Regulations, 1959, ss. 17, 21, 39, 44, Schedule 1, Rules 1, 8, 9, 10.
Section 18 of tho Medical Ordinance which provides that a decision of theMedical Council under tho Medical Ordinance shall bo subjoct to appeal to theMinister whoso decision shall be final is not a bar to certiorari proceedings toquash a purported decision of the Medical Council made without a due andproper inquiry and in broach of principles of natural justice.
Whon the question for decision is whothor a medical practitioner is guilty ofinfamous conduct in any professional respect, it would not be proper for aCourt of law to interfere with tho decision of tho Medical Council on thefacts. Thero must, however, be a due and proper inquiry before the MedicalCouncil, and it is in this field that the medical practitioner is entitled to seekthe intervention of tho Courts of law in an appropriate coso if there has been afailure to follow the principles of natural justice.
A disciplinary inquiry held by tho Medical Council in terms of tho MedicalDisciplinary (Procedure) Regulations published in the Ceylon OovernmenlGazette No. 11,980 of 27th Novembor 1959 has to be conducted in a judicialmanner and is of a quasi-judicial nature. The inquiry must bo conductedwith a grnvo sense of responsibility and strictly in accordance with the procedurelaid down in the Regulations.
The principle of natural justice, that those who decide must hear, is one thatis applicable whenever the rights of parties are affected. It is necessary that aJudge should be present at all stages of the trial.
The petitioner in tho present application for a writ of certiorari was a medicalpractitioner. The Medical Council, sitting as a Disciplinary Committee,found him guilty on a charge of infamous conduct in a professional respect.Although the quorum necessary to hold a Disciplinary Inquiry was five includingthe Chairman, the Council consisting of ten out of its eleven members decidedto participate in the inquiry. One member was presont on the dates when thecase for the Council was led and when a portion of the petitioner's case washeard but was absent when the petitioner gave evidence and at the stage of theaddresses. He did not participate in the. final decision. Another memberheard the evidence and participated in the decision but was not present when amaterial witness for the Council was being cross-examined in respect of aconnected charge. Another member was present on all dates except one andparticipated in the decision, but was absent on the day on which the petitionerwas being cross-examined.
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ALLES, J.—Paul v. Wijerama
Held, that the members of the Council constituted themsolves Judges at theinquiry. The absence, therefore, of some of them at material parts of theinquiry resulted in prejudice to the petitioner and a failure to follow tho funda-mental principles of natural justice in that they had not heard all tho oralevidence and tho submissions. Accordingly, tho final decision of the DisciplinaryCommittoe as a whole was rendered null and void and was liable to bo quashedby writ of certiorari.
Held further, that it is improper that prosecutors should subsequently aduptthe role of Judges. It is anomalous that tho Medical Disciplinary (Procedure)Regulations permit the members of tho Penal Committee which holds thepreliminary investigation to sit in judgmont subsequently at the DisciplinaryInquiry.
APPLICATION for a mandate in the nature of Writs of Certiorari andProhibition to quash the proceedings of a disciplinary inquiry held by theCeylon Medical Council.
H. W. Jayeioardene, Q.C., with C. Ranganatltan, Q.C., GeorgeCandappa, Mark Fernando and Miss U. J. Kurukulasooriya, for thepetitioner.
(S'. Nadesan, Q.C., with E. R. S. R. Coomarasivamy, C. Chakradaran,S. C. B. Walgampaya and Palitha Kohona, for the respondents.
Cur. adv. vult.
April 24, 1972. Alles, J.—
This is an application for a mandate in the nature of Writs of Certiorariand Prohibition seeking to quash the proceedings of a disciplinary inquiryheld by the Ceylon Medical Council and to restrain them from conductingany further proceedings against the petitioner, who was found guilty bythe Council on a charge of infamous conduct in a professional respect.
This is the first occasion, as far as I am aware, when it has been soughtto canvass a decision of a professional body like the Ceylon MedicalCouncil before a Court of law and it is therefore necessary at the outsetto examine how far the Courts of law can interfere in a matter whichpre-eminently comes within the purview of such a body. The findings of aprofessional body in regard to the conduct of a member of the sameprofession are matters that properly fall within the ambit of that bodywho are the best judges as to whether there has been a breachof professional ethics or not. Every profession maintains its ownstandards and is jealous of its own code of professional conduct. Indeedit is proper in the interests of public policy that such high standards ofpropriety should be encouraged. What may appear to be a veniallapse capable of condonation by a Court of law may be considered a veryserious matter by members of a professional body.
I am doubtful whether the Courts in Ceylon can interfere with thedecision of the Medical Council made after due inquiry in view of theprovisions of the law. The Ceylon Medical Act provides for an appeal
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363
to the Minister from a decision of the Council and the decision of theMinister is final (vide S. 18). In England up to 1950 the decisions of theGeneral Medical Council could be reviewed by the Courts only by way ofCertiorari. In 1950 a statutory right of appeal from a decision of theCouncil was given to the Privy Council and this right is now incorporatedin Section 36 of the Medical Acts of 1956. But even though this rightto interfere on questions of fact has been given to the Privy Council,the decisions of the Privy Council indicate that they have been slow tointerfere with findings of the Medical Council in the interests of publicpolicy and have adopted certain fundamental principles which existedeven before the right of appeal to a Court of law was made available.The only occasion, as far as I have been able to ascertain, when the PrivyCouncil reversed a finding of the Medical Council and held that the factsdid not disclose infamous conduct in a professional respect, by a medicalman is the recent decision of the Board in Faridian v. General MedicalCouncil1 (1971) A. E. R. 144.
The cautious approach of the Courts to findings of the Medical Councilis illustrated by decisions both prior to 1950 and after 1950 and indicatesthe reluctance of the Courts of law to interfere with theviews of the Councilon the question as to what amounts to infamous conduct by a medicalman. In 1894 in Allinson v. General Council of Medical Education andRegistration2 (1894) Q. B. D. 750 at 763 there appears the oft quotedpassage in the judgment of Lopes J.—
“ If it is shewn that a medical man, in the pursuit of his profession,has done something with regard to it which would be reasonablyregarded as disgraceful or dishonourable .by his professional brethren ofgood repute and competency, then it is open to the General MedicalCouncil to say that he has been guilty of ‘ infamous conduct in aprofessional respect”
and Lord Esher in the same case at p. 761 expressed himself inthe following language :—
“ There may be some acts which, although they would not be infamousin any other person, yet if they are done by a medical man inrelation to his profession, that is with regard either to his patientsor to his professional brethren, may be fairly considered ‘ infamouBconduct in a professional respect ’. ”
and Davey L. J. concluded his judgment with the following succinctstatement of the law at p. 766 :—
“ We have not to say whether the council were right or wrong in theinference which they drew. All we have to say is, whether there wasevidence on which they might, as reasonable men, have come to theirconclusion.”» 1
1 1.1971) 1 A. E. R. 141.'* (1894) Q. B. D. 750 at 763.
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ALLES, J.—Paul v. Wijcrama
The views expressed by the learned Judges in Allinson’s case have beenfollowed by the Court of Appeal (Scrutton, Greer and Slesser, L. JJ.)in Rex v. General Council of Medical Education and Registration Ex parteKynaston 1 (1930) 142 Law Times 390.
In Fox v. General Medical Council 2 (1960) 3 A.E.R. 225 at 227 LordRadcliffe drew attention to the distinction between an appeal from theCourt of Appeal hearing an appeal from a judge sitting alone without ajury and an appeal from the decision of a Council.
“A judge delivers a reasoned judgment; he puts on record hisfindings where there is material conflict of evidence and the conclusionsthat he has forpied as to the credibility or reliability of the witnesseshe has heard ; he indicates his views on the law and the bearing of thoseviews on the conclusion that he comes to. It is with this judgmentbefore it that the appellate court proceeds to its hearing of the appeal.But, in the case of hearings before the Medical Council, no judgment is,of course, delivered. There is only a finding such as we have herethat ‘ the committee have determined that the facts alleged … inthe charge have been proved to their satisfaction ’. It is not possibleto tell, except by inference, what has been the weight given by thecommittee to various items or aspects of the evidence, or whatconsiderations of fact or law have proved the determining ones thathave led the members to arrive at the decision finally come to. Suchconsiderations, which are unavoidable in appeals of this kind, dosometimes require that the Board should take a comprehensive viewof the evidence as a whole and endeavour to form its own conclusionwhether a proper inquiry was held and a proper finding made on it,having regard to the rules of evidence under which the committee’sproceedings are regulated.
The validity of any determination by the committee is, certainly,dependent on the performance of its statutory duty to hold a ‘ dueinquiry ’ into the matter, and the Board will need to be satisfied as tothis if it is challenged on an appeal.”
Lord Radcliffe, while appreciating the difficulties that faced the Boardin dealing with a decision of the Council however, maintained that " itwould be an undue limitation of their duty and powers in dealing withthe statutory appeal to require no more for the upholding of adetermination than observance of what are known as the principles ofnatural justice Having dealt with the facts which he thought musthave been accepted by the Council het^-aa dismissed the appeal.
‘ {1930) 142 Law Times 390.
* (1960) 3 A. E. R. 226 at 227.
ALLES, J.—Paul v. Wijerama
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The observations of Lord Radcliffe have been followed by LordEvershed in Whitby, v. General Medical Council Privy Council AppealNo. 19 of 1963. Lord Evershed stated that—
the duty of the Board in such a case as the present will be, afteran examination of all the evidence, to say whether the conclusionreached by the Disciplinary Committee is one that could .property andreasonably have been reached by a body of professional men.”
and that—
“ the Disciplinary Committee should prima facie be regarded as wellqualified to form a judgment, whether the conduct of the personcharged is or is not in accordance with the ethical standards of theprofession.”
The criticism raised in Whitby’s case was that there were substantialde'fects in the conduct of the case against the practitioner and thoughthe Board held that there were some defects, they took the view that,in all the circumstances, they were not of so grave and substantial anature as to warrant an interference by the Board and dismissed theappeal.
In Sloan v. General Medical Council1 (1970) 2 A.E.R. 68G Lord Guestagain expressed concurrence with the .observations of Lord Radcliffeaudheld that although there were certain irregularities in regard to theframing of the charges which however, were insufficient to plead afailure of the principles of natural justice there were :—
“ no closed categories of infamous conduct and in every case itmust be a question for the committee to decide first whether the factsalleged in the charge have been proved and second whether the appellantwas in relation to those facts guilty of infamous conduct in a professionalrespect.”
Similar views in regard to the powers of the Board have been expressedby Lord Hodson delivering the judgment of the Board in Bhattacharya v.General.Medical Council 2 (1967) 2 A.C. 259 at 265 :—
“ In their Lordships’ view that jurisdiction on appeal is not confinedto ^considering whether the alleged facts, if proved, are capable ofamounting to infamous conduct in a professional respect, but extendsto the consideration whether in the particular circumstances of thecase these facts justify a finding of infamous conduct in a professionalrespect; but in the latter case their Lordships’ board would naturallybe very slow to differ from the conclusion of the General MedicalCouncil, to whom is entrusted the decision of these matters asrepresenting the responsible body of opinion in the medical professionupon professional matters.” *
* {1967) 2 A. O. 259 at 265.
1 (1970) 2 A.E.R. 686.
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ALLES, J.—Paul c. Wijerama
Even on the question whether the name of a practitioner should or shouldnot be erased from the register, the Board is slow to interfere with theexercise of the discretion of the Council—Vide the observations of LordUpjohn in McCoan v. General Medical Council1 (1964) 3 A.E.R. 143at 147.
Mr. Jayewardene for the petitioner has strongly urged that we shouldreview the decision of the Council finding the petitioner guilty of infamousconduct in a professional respect because he submits that the evidence,even if accepted, does not establish infamous conduct on the part of hisclient. In Faridian v. General Medical Council (supra) Viscount Dilhornewho delivered the advice of the Board stated whether in relation to agiven matter a doctor has been guilty of infamous conduct is a questionof mixed fact and law, the question of law being whether on the factsproved or admitted by the doctor, the doctor had been guilty of infamousconduct—Felix v. General Dental Council2 (1960) 2 A .E.R. 397. Thereafterthe learned Law Lord stated that in the case under consideration twoquestions had to be considered—(a) whether the facts proved were capableof amounting to infamous conduct, and (b) whether in the particularcircumstances of the case such a finding was justified. He then proceededto examine the facts and held that in the absence of knowledge the factsdid not disclose infamous conduct on the part of the practitioner. Ourlaw does not grant this power to the Courts and in my opinion it w ouldnot be proper for a Court to express a view on the facts, whether theparticular circumstances established, amounted to infamous conduct ornot.
If I were to agree with Counsel’s submission and thereby seek tointerfere with the decision of the Council on the facts I am of opinionthat such a course would amount to a trespass on the functions of acompetent body who are the proper judges to decide this issue. I amfortified in this view by the reluctance of the Privy Council to disturbthe findings of the General Medical Council in matters of this nature inEngland and the absence of any provision in the Ceylon Medical Act^which confers jurisdiction on our Courts of law to interfere with adecision of the Council made after due and proper inquiry y I would inthis connection commend to the Council the wise words of Lord Atkinin General Medical Council v. Spackman 3 (1943) A.C. 627 at 637 :—
" The conduct alleged against the respondent is conduct from whichthe public have every claim to be protected, and there would be nonemore ready , to afford protection than the members of the medicalprofession itself, but it is obvious that the gravity of the charge doesnot diminish the weight of the evidence necessary to establish it.It increases it. The responsibility, therefore, thrown on the GeneralMedical Council in such cases is grave. Now, it is plain that the statutethrows on the council and on the council alone the duty of holding
1 (1964) 3 A. E.R. 143 at 147.
• (1943) A. O. 627 at 637.
(I960) 2 A.E.R. 397.
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due inquiry ami of judging guiit . . . The practitioner charged isentitled to a judgment, the result of the considered deliberation of hisfellow practitioners. They must, therefore, hear him and all relevantwitnesses and other evidence that he may wish to adduce before them. . . the council are not obliged to hear evidence on oath, but the veryconception of prima facie evidence involves the opportunity ofcontroverting it, and I entertain no doubt that the council are bound,if requested, to hear all the evidence that the practitioner chargedbrings before t hem to refute the prima facie case made from the previoustrial. If this is inconvenient it cannot be helped. It is much moreinconvenient that a medical practitioner should be judged guilty of aninfamous offence by any other than the statutory body. …Icm imagine no tribunal better qualified to draw deductions from theproved conduct between a doctor and his female patient than thevery experienced body of men for instance who sat on the presentinquiry.”
These observations of Lord Atkin have some bearing on the questions ofprocedure that were followed in the course of the present inquiry, towhich reference will be made later in the course of this judgment.
The attitude of the Courts in England does not, and cannot mean thutthe Courts in Ceylon are not able to grant relief to the subject in anappropriate case when there has been a breach of the principles of naturaljustice. This is a fundamental rule of procedure which is always availableto the subject when his individual rights have been affected. TheCeylon Medical Act (Ch. 105) provides for the framing of Regulationsto hold disciplinary inquiries. The Medical Disciplinary (Procedure)Regulations 1959 published in the Ceylon Government Gazette No.11,980 of November 27, 1959 provides for the procedure applicablein regard to complaints against practitioners, the proceedings at hearings,the manner in which the case against the practitioner is to be conducted,the procedure to be followed in cases of conviction, the procedure to beadopted w here the decision of the council is postponed and a variety ofconnected matters which already indicates that the inquiry has to beconducted in a judicial manner and is of a quasi-judicial nature. TheCouncil does not give reasons for its decision and only intimates to thepractitioner whether he has been found guilty or not. When an allegationof misconduct is made against a practitioner—and this must be in theform of an affidavit from the complainant—the practitioner concernedis called for an explanation and the matter is referred to the Penal CasesCommittee, which consists of the President and four other members ofthe Council, who decide whether the material is sufficient for the holdingof a disciplinary inquiry. These same members are entitled to sit on theTribunal which hears the case against the practitioner. In my view,this is an unsatisfactory procedure and likely to cause prejudice to thepractitioner and may be the cause of a justifiable complaint, even thoughit may be permissible under the Regulations. The Medical Disciplinary(Procedure) Regulations make ample provision for an allegation against
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ALLES, J.—Paul r. Wijerama
a practitioner to be considered adequately by his professional brethrenbut in view of what Lord Wright described in Spackman’s case at pp. 639.640 as the “tremendous powers” given to the Council “which mayclose a man’s professional career and ruin him financially and socially ”it is absolutely necessary that a disciplinary inquiry should be conductedwith a grave sense of responsibility and strictly in accordance with theprocedure laid, down in the Regulations. There must be a due andproper inquiry before the Council, and it is in this field that the practitioneris entitled to ijeek the intervention of the Courts of law in an appropriatecase if there has been a failure to follow the principles of natural justice.In such a case the decision of the Council is reviewable by way of Certiorari.In Spackman’s case Lord Wright after referring to the wide powersgiven to the Council under the Medical Act and the Regulations madethereunder observed at p. 640 that Parliament had not provided for anyappeal from the decisions of the Council (this was prior to 1950) andthen stated:—
“ The only control of the court to which the council is subject (apartfrom proceedings by way of mandamus) is the power which the court.may exercise by way of certiorari. Certiorari is not an appellatepower. Its use may nullify or discharge an order made by the council,but the grounds on which certiorari may be granted are strictly limited.They may, I think for purposes of this case, broadly be taken to be(i) the ground that the council’s proceeding was ultra vires, (ii) theground which without any very great precision has been described as adeparture from 1 natural justice ’. The former ground is not likelyto be invoked in connexion with the orders of the council. Theirpowers are so wide and undefined that the possibility of a case of ultravires is theoretical and almost fantastic. It is not to be contemplatedthat the council would proceed without solid prima facie grounds orotherwise than in good faith. The question of a failure of ‘ naturaljustice ’ is what is to be considered in this appeal, but, before consideringthe meaning of these words, I must first observe that they can in thiscase be properly taken as a description of what the council has to do,namely, to make ‘ due inquiry ’ which under the statute is the governingV'ite.rion, that is^an independent inquiry by the council as the bodyutponsible for its own decision.
‘ Natural justice ’ seems to be used in contrast with any formal ortechnical rule of law or procedure.”
Mr. Jayewardene has- strongly urged that in this case there has been adenial of the principles of natural justice in the conduct of the inquiryagainst his client in that at material parts of the inquiry some of themembers of the Council have been absent and consequently his clientha9 been prejudiced in the final result. One member, Dr. Rajanayagam,was present on the dates when the case for the Council was led but wasabsent thereafter and did not participate in the decision. Another
AJLLE9, J.—Paul v. Wijetama
SOS
member, Dr. C. L. A. de Silva, participated in the decision but was notpresent when a material witness for the Council was being cross-examined.Another member, Dr. M. O. R. Medonza, was present on all dates exceptone and participated in the decision. He was absent on the day onwhich the petitioner was being cross-examined. Another member,Dr. Wijeygoonewardene, was present only on one date and did notparticipate in the decision. It will be necessary to. examine whattranspired at the various meetings and arrive at a conclusion whetherthe absence of some or all of these members at various stages of theinquiry has resulted in prejudice to the petitioner and a failure to followthe principles of natural justice. The Earl of Selboume in Spademan v.Plumstead District Board, of Works1 10 A. 0.229 cited by Lord Wrightin General Medical Council v. Spackman (supra) at p. 641 has put such asituation in very apposite language:—
“ this is a matter not of a kind requiring form, not of a kind requiringlitigation at all, but requiring only that the parties should have anopportunity of submitting to the person by whose decision they are tobe bound such considerations as in their judgment ought to be broughtbefore him.”
Before dealing with the evidence that was led at the various meetingsit is necessary to consider certain provisions of the Ceylon Medical Actand the Regulations made thereunder and also draw attention to thecircumstances which led to the charges being framed against thepetitioner.
The Ceylon Medical Council consists of eleven members including aPresident and a Vice President and hold office for a period of five years.Very wide powers are given to them—mostly based on the correspondingprovisions of the General Medical Council of England. An importantfunction, if not the most important of all, is the right to hold a disciplinaryinquiry into the conduct of a medical practitioner which entitles themto erase his name from the register of medical practitioners, if he is foundguilty of having committed an act of infamous conduct in a professionalcapacity. For this purpose Regulations have been made under the Actproviding for the disciplinary procedure to be followed. I have already■ indicated at the commencement of this judgment the precautionarymeasures and the procedure which the Council has prescribed forthemselves to ensure that the disciplinary inquiries are properly conducted.Adequate notice is given to the practitioner concerned as to the natureof the complaint, charges are framed, lawyers may be retained and theproceedings are conducted in a judicial manner. The quorum'-for ameeting of the Council is five and after evidence is recorded and addressesare made, the Council determines whether a charge has been proved.Thereafter the Council may postpone its decision as to whether the nameshould be erased from the register, to a subsequent meeting. The Councildoes not give reasons for its decision and the decision is conveyed to thepraotitioner by the President.
1to A. 0.139.
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AJLLE3, J.—Paul v. Wijerama
In order to appreciate Counsel’s submission it is also necessaryto examine the events which led to the charges being framed againstthe petitioner.
The petitioner, Mr. A. T. S. Paul (I choose to call him Mr. Paul becausehe preferred to be so addressed at the Disciplinary Inquiry) is an eminentthoracic surgeon and Mr. Nadesan for the Council does not challengehis skill and attainments as a Surgeon. Since 1950 he was attached tothe General Hospital Thoracic Unit with Dr. T. D. H. Perera as hisRegistrar. After a year a second Thoracic Unit was established withDr. T. D. H. Perera as its Head. There were two other Surgeons—Dr. Rasaratnam and Dr. Natcunam—under Mr. Paul and Dr. W. F.Perera was the Surgeon assisting Dr. T. D. H. Perera. There is ampleevidence that since 1960 there has been professional jealousy betweenMr. Paul and Dr. Perera, resulting in a bitter campaign between thesetwo practitioners. In 1960 Mr. Paul faced a Public Service CommissionInquiry at which 39 charges were brought against him, at which Dr.Perera played a major part. According to the petitioner it was Dr.Perera who “ instigated the Director of Health to make a false allegationthat he had tremendous mortality and should be retired for inefficiencyThe petitioner was exonerated of all charges against him and the sequelwas a series of charges against the Director of Health for making falseallegations. In June 1969 the petitioner with the help of an engineerinvented a Heart-lung machine which claimed to be more effective thanthe Hufnagel Machine used at the Hospital. A witness for the CouncilDr. K. A. T. W. Perera admitted that the petitioner’s machine wasless costly than the Hufnagel machine, could be used without blood andhad been successfully used for operations. On 13th June 1969, aphotograph appeared in the newspaper called Sun ” which containeda photograph of the petitioner and a nurse with the machine. Thisphotograph formed the subject matter of the first charge against thepetitioner and the complaint to the Council was made by Dr. Pererain his affidavit P7 of 22nd April 1970. The second and third chargesagainst the petitioner was the result of two publications in the “ CeylonObserver ” marked- P3 and P4. P3 appeared in the late editionof 9th February 1970 under the caption “ Talking Point ” and reads asfoil ‘ws:—
TALKING POINTFour year old A. D. Nimaladasa was a “ Blue blooded ” boy fromhis birth. He was weak and feeble, when his father took him toKurunegala Hospital. Doctors found that little Nimaladasa had ahole in his heart and they transferred him to the General Hospital,Colombo.
The doctors at the General Hospital were of the opinion thatNimaladasa should undergo surgical treatment.
He wns taken up for an operation last Saturday by an eminentsurgeon. The hole was patched up with Teflon patch and he wassent to the Intensive Care Unit with moderate blood pressure.
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After two hours Nimaladasa started to bleed from his chest andhis blood pressure went down.
The surgeon found that Nimaladasa was bleeding from the holehe patched up a few hours before.
The hoy died.
The City Coroner, Mr. Egerton B. Weerakoon, who held an inquestinto his death has returned a verdict of surgical misadventure.
The petitioner states that he read P3 when he was on leave in Jaffna andon his return to Colombo several persons, including his professional brethrenand friends, inquired from him whether he was responsible for theoperation described in P3. He has called Dr. D. J. AttygaUc,Dr. Thanabalasunderam, a journalist Baron de Livera and a family friendMrs. Udawatte in support. He therefore stated that he felt that hisprofessional reputation was at stake and he wrote the letter P14 to theEditor of the newspaper dated 13th February 1970. P14 is in thefollowing terms:—
Talking Point—9th February
Dear Sir,
Reference the lurid details of an operation for “ hole in the heart ”at the Colombo General Hospital, I would be grateful if you wouldpublish that this case has no reference or connection with me, as thedetails as given in your article, has led to a misconception thatthe operation was performed by me.~■
Sgd. A. T. S. Paul, .
Thoracic Surgeon,General Hospital.
This letter resulted in the publication on 17th February 1970 of thefollowing denial under the caption “NOT ME”. P4 is in the followingterms and was published on 17th February 1970 :—
NOT MEDr. A. T. S. Paul in a letter to the “ Observer ” states that thereference in the Talking Point of February 5 (should be February 9)to an unsuccessful hole in the heart operation at the Colombo GeneralHospital has no reference or connection to him.
There is no material which might suggest that the petitioner was actuatedby any motive other than that of safeguarding his reputation when hewrote P 14. .
It is not disputed that Dr. T. D. ,H. Perera performed an operationon one A. D. Nimalaratne and not Nimaladasa for a patent ductus andnot a “ hole in the heart ” and that the operation was performed bn 7thFebruary 1970 (Vide P15—Certificate of Death).
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On 12th March 1970 Dr. T. D. H. Perera made a complaint to thePermanent Secretary (P9) in which he alleged that the publicationof P3 and P4 had resulted in damaging his reputation as a heart surgeonand inquiring from the Permanent Secretary what steps the Departmentcontemplates taking to vindicate his reputation. It was thereafterthat Dr. Perera submitted affidavits P7 and P8 to the Medical Councilin consequence of which the disciplinary inquiry was commenced bythe Council. Prior to P9 being written, the petitioner too hadforwardedan affidavit to the Council on 26th February 1970 against Dr. Perera inregard to certain derogatory remarks which Dr. Perera is alleged to havemade against a brother officer when he read a paper before the ClinicalAssociation. That he did make certain derogatory remarks is supportedby the evidence of Dr. Mirando, the then President of the Council andthe Circular D1 which was sent thereafter to all medical officerswarning them that they should not make derogatory references to theirbrother officers at public talks. It was suggested at the hearing ofthe appeal that the affidavits P7 and P8 were retaliatory in natureconsequent on the petitioner’s affidavit of 25th February 1970 againstDr. Perera.
On receipt of P7 and P8 the Medical Council wrote to the petitionerby P12 of 27th April 1S70 forwarding the affidavits and calling for anyexplanation before 22nd May 1970 and stating that the complaint hadbeen referred to the Penal Cases Committee. To PI 2 the petitionersent the letter P13 of 2nd May 1970 in which he stated that it was necessaryto dissociate himself with the operation referred to in P3 because “rumours 'were being circulated in Colombo that he was the surgeon concerned in thefatal operation ”. He then added that Dr. Perera had deliberatelytried to mislead the Council in that he did not perform the operationon Nimaladasa as reported in “ Talking Point ” (certified copies of theDeath Register attached) Dr. T. D. H. Perera did not perform a fataloperation on Nimaladasa which he denied in his sworn affidavit. Thecertified copy of the Death Register (P15) indicates that the name ofthe patient was A. D. Nimalaratne. P13 therefore does contain anincorrect statement in regard to the name of the patient. P16 was the^petitioner’s reply to the publication in the “ Sun
On I7th July 1970 the following Charge Sheet was presented againstthe petitioner. It is marked PI.
That being registered under the Medical Ordinance (Cap. 105 of the
Legislative Enactments of Ceylon, 1956)— 1
(1)you did advertise for the purpose of obtaining patients orpromoting your own professional advantage by procuringor sanctioning or knowingly acquiescing in the publicationin the issue of “ the Sim ” dated 13th June 1969 of an articleentitled “HEART-LUNG MACHINE MADE IN CEYLON”,together with a photograph, of, inter alia, yourself, aninstrument purporting to be a heart-lung machine and a
ALLES, J.—Paul v. Wijerama
STS
person dressed as a nurse thereby commending or directingattention to your professional skill, knowledge, service orqualifications;
(a) you did advertise for the purpose of obtaining patients orpromoting your own professional advantage by procuring orsanctioning or knowingly acquiescing in the publication inthe issue of the “ Ceylon Observer ” dated 17th February1970 of an article entitled “ NOT ME ” with reference to anarticle entitled “ TALKING POINT ” published in theissue of the “ Ceylon Observer ” dated 9th February. 1970thereby commending or drawing attention to your professionalskill, knowledge, service or qualifications;
(6) that in the course of the same transaction referred to in charge2 (a) above by procuring or sanctioning or knowinglyacquiescing in the publication of the said article entitled“ NOT ME ” with reference to the said article entitled“ TALKING POINT ”, you did thereby depreciate theprofessional skill, knowledge, service or qualifications ofanother registered medical practitioner, viz., Mr. T. D. H.Perera, F. R. C. S.,
and that in relation to the facts alleged you are guilty of infamousconduct in a professional capacity.
On 15th February 1971 after inquiry, the President made the order P2which he has conveyed by letter to the petitioner. P2 is in the followingterms—
Dr. Paul, the Council viewB with great concern matters concernedwith the charges made against you :■—
re 'the 1st charge the Council find that the article referred to, doesnot directly draw attention to your professional skill, knowledgeor qualifications. Hence the Council is not satisfied that thecharge has been proved. However the Council wishes to drawyour attention to the fact that the Council expects a SeniorMedical Practitioner of your standing to have acted with greaterdiscretion than pose for a press photograph knowing that itwould be published in the lay press.
re the charge 2 (a) the Council finds you guilty. On this chargethe Council has decided to “ postpone its decision ” for a periodof one year. The Council finds you not guilty of charge 2 (6).
In view of the findings of the Council on Charges (1) and 2 (6) the onlymatter that arises for consideration at present is how far the principlesof natural justice have been violated in regard to the decision of theCouncil on Charge .2 (o) since some members of the Council were absenton certain dates of the inquiry. The quorum necessary to hold aDisciplinary Inquiry was five including the Chairman but in this, case
374
AXLES, J.—Paul v. Wijerama
the Council consisting of ten out of its eleven members decided toparticipate in the inquiry. In doing so the members of the Councilconstituted themselves Judges in the matter, and as judges, it was theirduty to listen to all the evidence, the submissions of Counsel and sharetheir collective wisdom in deciding whether the practitioner was or wasnot guilty of any of the charges. This becomes all the more importantwhen the Regulations do not require the Council to give reasons fortheir decision and the practitioner is unaware whether there has beena difference of opinion among the members of the Council. Regulation39 which provides for the taking of votes indicates that the Chairmanshall call upon the members to signify their votes by raising their handsand shall then declare that the question appears to have been determinedin the affirmative or negative as the case may bo. Regulation 39 (2)only applies when the result so declared is challenged by a member ofthe Council in which case the Chairman shall “ announce the number ofmembers of the Council who have voted each way and the result of thevote ”.
Although provision is made in the Regulations for a quorum of fivepersona including the Chairman to constitute a Disciplinary Tribunalthere is nothing to prevent the entire Council from sitting at theproceedings of a Disciplinary Inquiry. In this connection it is pertinent■ to note that under the rules of the Penal Cases Committee the validityof any proceedings of the Committee shall not be affected by any vacancyamong the members thereof. There is no corresponding provision in theRegulations governing the procedure at the hearing of a case where theconduct of the practitioner is in issue.
The members of the Council who participated in the disciplinary
inquiry were the following :—
Dr. E. M. Wijerama—President
Dr. C. L. A. de Silva
Dr. K. M. C. de Silva
Dr. W. D. L. Fernando
Dr. V. Kumaraswamy
Dr. M. O. R. Medonza
Dr. Rienzie Peiris
Dr. S. Rajanayagam
Dr. R. P. Wijeyratne10. Dr. Wijeygoonewardene
These 10 members have been made respondents to this application.The inquiry commenced on 29th August 1970 on which date the Proctorappearing for the Council opened the case and led the evidenceof Dr. T. D. H. Perera. All the members were present exceptDr. Wijeygoonewardene. This member was absent on all dates of the inquiryexcept on 2nd October 1970 when Counsel for the petitioner addressed
ALLE8, J.—Paul v. Wijerama
IT#
the Council at the close of the prosecution that no case had been made outagainst his client. The Council, however, did not agree with Counsel’ssubmissions. On 11th September Dr. T. D. H. Perera was cross-examinedby Counsel and Dr. C. L. A. de Silva was absent on that date. On20th September Dr. Perera was further cross-examined and the evidenceof two other witnesses was led. All members were present on that dateand also on the subsequent date (2nd October 1970). On 12th Octoberthe petitioner’s case commenced and was continued on 30th Octoberand all members .were present on both dates. On 31st October aphotographer R. Wijeyratne gave evidence and the petitioner testifiedoh his own behalf.. On this day Dr. Rajanayagam was absent. Theexammation-in-chiBf and the cross-examination of the petitioner wascontinued on 4th November. On this day Dr. Medonza was absent andDr. Rajanayagam who was present left before the proceedings commenced.The petitioner’s case was concluded and addresses of Counsel commencedon 3rd December on which date Dr. Rajanayagam was again absent.On. this date Counsel protested that the entire inquiry was vitiated bythe absence of Dr. Rajanayagam who had listened to the evidence andparticipated actively in the proceedings. It was Counsel’s furthersubmission that his client was deprived of the vote of Dr. Rajanayagam. which might have been in his favour and which may have influenced theother members of the Council. The President however overruled theobjection and decided to continue with the inquiry. The address ofCounsel was continued on the subsequent and final date 15th February1971 on which date too Dr. Rajanayagam was absent.. It was broughtto the notice of the parties that Dr. Rajanayagam had been taken illand was unable to participate in the proceedings any further.
I do not think the absence of Dr. Wijeygoonewardene can be said tohave prejudiced the petitioner’s case. He did not hear the evidenceand was'only present on a date when Counsel addressed the Councilthat no priina facie case had been made out against his client. Whateverviews he may have had after listening to Counsel, could not haveinfluenced the other members of the Council in regard to their decision onCharge 2 (a).
Dr. C. L. A. de Silva heard the evidence and participated inthe deliberations but was not present on the date w'hen Dr. T. D. H.Perera was cross-examined^ Although the proceedings before the Councilarose out of a complaint made by Dr. Perera, his evidence would havebeen material if there was a conviction on the third charge. Ho was nodoubt severely cross-examined by Counsel in regard to a number ofmatters which afl'ected his credibility—his claim that he had performed35 cases on “hole in the heart’’ operations without mortality; theoperations which he performed in conjunction with the “Hope Ship”doctors; his address to the Clinical Association on 24th February 1970which resulted in the President criticising him for making derogatoryremarks about his fellow practitioners; the animus he bore against thepetitioner and that-the articles P3 and P4 did not necessarily refer to
370
AIXES, J.—Paul v. Wijerama
him as the surgeon who performed the unsuccessful operation as therewere five thoracic surgeons at the General Hospital. This appears tohave been accepted by the Council in view of the acquittal of the petitioneron. the third charge. I agree with the view of the Council that thecredibility of Hr. Perera was not in issue except perhaps on which thepetitioner haB now been found not guilty. As the President remarkedin the course of the inquiry even-if everything adverse could be saidabout Dr. Perera it could not affect the conduct of the petitioner in thepublication of the article contained in P4 which according to the Council,taken in conjunction with P3 would indicate that the petitioner hadadvertised himself and thereby was guilty of infamous conduct in aprofessional respect by drawing attention to his professional skill. I amtherefore inclined to take the view that the absence of Dr. C. L. A. de Silvaon 11th September 1970 cannot affect the decision of the Council in regardto the finding on Charge 2 (a).
The absence of Dr. Medonza on the date when the petitioner was beingcross-examined cannot however be so easily brushed aside. Although therecord indicated that Dr. Medonza was present on the 4th Novemberit was agreed by Counsel on both sides that this is an error and thatDr. Medonza was absent on this date. One of the essential ingredients ofthe Charge 2 (a) was whether the petitioner caused the publication ofP4 with the intention of advertising himself for his own professionaladvantage. The petitioner gave evidence in chief and stated that henever had such an intention ; that his only motive in writing to theEditor was to stifle the malicious gossip that was being disseminated thathe had performed an unsuccessful operation. If his evidence-in-chiefwas accepted he had necessarily to be found not guilty on Charge 2 (a).His cross-examination appears to have convinced the Council thatthat was not his intention and they came to a finding adverse to himon this issue. Dr. Medonza, even without hearing his evidence incross-examination, must be presumed to have participated in the decisionof the Council to find him guilty. I am therefore of opinion thatthere is justification in the submission of Counsel that the absence ofDr. Medonza on 4th November and his participation in the final decisionresulted in prejudice to his client.
Dr. Rajanayagam heard the entire case for the Council and also aportion of the petitioner’s case but was absent when the petitioner gaveevidence and at the stage of the addresses. The petitioner thereforedid not have the benefit of his views at the time the Council deliberatedon their decision. As Counsel remarked, a situation may have arisen atthe time of voting when Dr. Rajanayagam’s vote may have tipped thescale in his favour. If one were to take an analogy from a jury trialwhen one of the jurors is taken ill or is unable to continue to functionas a juror the normal course would be for the entire jury to be dischargedand a fresh trial ordered by the Judge.
ALJL.ES, J.—Paul v. Wijerama
377
In regard to. the absence of Dr. Medonza and Dr. Rajanayagam atmaterial parts of the inquiry, I think the petitioner has a justifiablegrievance that the principles of natural justice have not been followed inregard to the inquiry against him. In support of his submission thatthere had been a failure to follow the principles of natural justice in thatmembers of a judicial tribunal had not heard all the oral evidence and thesubmissions, Mr. Jayewardene strongly relied on the decision of the NovaScotia Supreme Court in Regina v. Committee on Works of Halifax CityCouncil, ex parte Johnston.1 In this case in accordance with Section 757of the Halifax City Charter the City Building Inspector submitted a reportto the Committee of Works that a certain building was in such a state ofnon-repair as to be no longer suitable for habitation or business purposes.The committee appointed a time and place for the consideration of thereport, gave the owner notice of the meeting, furnished him with a copyof the report and permitted him to appear and be heard. Considerationof the report extended over five meetings of the Committee. The quorumrequired for a meeting was four and at all meetings the required quorumwas present. Of the five meetings, at two meetings, on 6th July and 18thJuly there was argument and evidence against the demolition of thebuilding. At the meeting of 6th July Aldermen Macdonald, O’Brienand Wyman were absent and at the subsequent meeting of 18th JulyAlderman Macdonald was absent. On 5th September it was moved byAlderman Connolly and Alderman Fox that the domolition order be notapproved but this motion was defeated 6-2. Alderman O’Brien andAlderman Macdonald then moved that the building be demolished withinsix months and all voted for the demolition. Of the eight memberswho voted for the demolition five members were absent from one or moremeetings of the Committee at which the demolition order was discussed,yet these five members all took part in the voting dealing with thedemolition of the building. The mover and the seconder were bothpersons who were absent from the meeting of July 6th when the evidenceand the arguments in relation to the demolition were being discussed.One of the questions that was raised before the Supreme Court was thatthe Committee acted contrary to natural justice and not in the spiritof judicial decision, in that members of the Board were not present atall of the hearings, and still participated in the discussion and voted fordemolition on 5th September 1961. The Chief Justice held that therewas a violation of the principles of natural justice.
I agree that the facts of the Canadian case are stronger than the factsunder consideration in the present case but the principle appears to beestablished that when a person exercising judicial functions does nothear a material part of the case hels disqualified from acting as a Judge.Furthermore a Judge who has heard the evidence should be able to give
30-Volume LXXV
1 (1962) 3i D. L. Jt. 45.
878
ALiLES, J.—Paul v. Wijerama
the benefit of hifi viewB to his brother Judges at the time the decision ismade. Justice MacDonald in the Canadian case puts the matter inthis forceful way :—
“ where one or more members of an adjudicatory body (such as aCity Council) has failed to attend meetings at which important aspectsof a matter involved in the adjudication have been presented ordiscussed, he thereupon becomes disqualified from participating in thefinal deliberations of that body or in the decision of that body uponthat matter ; and that if he does so participate therein, the decision ofthat body is vitiated thereby and must be set aside.”
Justice MacDonald also relied on several English and Canadian cases insupport of the proposition that when qualified members of an adjudicatingbody have been joined in their later deliberations and decisions bymembers who had. by reason of missing previous meetings disqualifiedthemselves, not only are such persons disqualified by reason of firsthand knowledge from participating in final decisions but their presenceat their discussions also disqualifies the body as a whole and rendersits decisions invalid.
In the present case Dr. Medonza took an active part in the proceedingsand often put questions to both witnesses and Counsel, and his viewsin regard to the culpability of the petitioner would have weighed withthe other members of the Council at the time of the deliberations on thefinal verdict. It is therefore unfortunate that he did not have the benefitof listening to the cross-examination of the petitioner particularly inregard to his object in causing the publication of P4. He may have beensufficiently impressed by his answers in cross-examination to confirmthe evidence given in chief that the petitioner had no ulterior motive incausing the publication of the impugned article. S. A. de Smith injludicial Review of Administrative Action (2nd Ed.) at p. 206 putB it inthis way:—
“ It is a breach of natural justice for a member of a judicial tribunalor an arbitrator to participate in a decision if he has not heard all theoral evidence and the submissions. The same principle has beenapplied to members of administrative bodies who have taken part indecisions affecting individual rights made after oral hearings beforethose bodies at which they have not been present.”
De Smith cites several cases in support of this proposition. In in rePlews and Middleton1 in the course of arbitration proceedings one of thearbitrators examined a witness in the absence of the other arbitrators andthe parties, but both arbitrators concurred in the judgment. It washeld by Coleridge J. that the taking of evidence by one arbitrator in theabsence of the other arbitrator was fatal to the validity of the proceedingsbeing contrary to the principles of natural justice.
1 (1845) 14 L. J. Q. B. 189.
AX.LE3, J.—Paul v. Wijerama
379
In King v. Huntingdon Confirming Authority1 the Confirming Authoritywas required to review a licence which had been considered by the licencingauthorities. Two meetings of the Confirming Authority were held oneon April 25th and the other on May 16th. Some of the justices who didnot sit on April 25th when the conditions of the licence were consideredsat at the meeting of May 16th which reached a decision for the purposesof confirmation. Romer J. in his judgment at p. 717 stated :—
“that at that meeting of May 16 there were present three justiceswho had never heard the evidence that had been given on oath onApril 25. There was a division of opinion. The resolution in favourof confirmation was carried by eight to two, and it is at least possiblethat that majority was induced to vote in the way it did by the eloquenceof those members who had not been present on April 25, to whom thefacts were entirely unknown.”
Might not the eloquence of Dr. Medonza who did not hear Mr. Paul’sevidence in its entirety have persuaded the other members to make anorder adverse to the petitioner and might not Dr. Rajanayagam, if hewas present at the final meeting, have been able to persuade the. members of the Council to give a decision in favour, of the petitioner?
The principle of natural justice, that those who decide must hear, isone that is applicable whenever the rights of parties are affected. Thepresence of the Judge at all stages of the trial has been commented uponby Lord Denning in the Privy Council in Tarrmhwar v. Reginam®. Thiswas a criminal case in which the jury viewed the scene in the absenceof the Judge. Said Lord Denning at p. 688—
“ Their Lordships think it plain that if a judge retired to his privateroom whilst a witness was giving evidence, saying that the trial was tocontinue in his absence, it would be a fatal flaw. In such a case,the flaw might not have affected the verdict of the jury. They mighthave come to the same decision in any case. But no one could besure that they would. If the judge had been present, he might haveasked questions and elicited information on matters which counselhad left obscure ; and this additional information might have affectedthe verdict. So here, if the judge had attended the view and seen thedemonstration by the witnesses, he might have noticed things whicheveryone else had overlooked ; and his summing-up might be affectedby it. Their Lordships feel that his absence during part of the trialwas such a departure from the essential principles of justice, as theyunderstand them, that the trial cannot be allowed to stand.”
These observations might well be applicable to Dr. Medonza who atall times took a lively interest in the proceedings.
Finally, there is tho interesting case of Munday v. Munday5, a divorceaction where the husband sought a variation of the order, of maintenanceto be paid by him to the wife. The husband’s complaint was heard on •
• (1957) 2 A. E. R. 683.
* (1954) 2 A. E. B. 667.
1 (1928) 1 K. B. D. 698.
880
AUJES, J.—Paul v. Wxjerajna
February 3 by three justices ; the husband gave evidence in chief andthe justices adjourned the case until February 17, to enable him toproduce certain accounts and files. The same three and two additionaljustices sat at the adjourned hearing on February 17. A furtheradjournment was granted to enable the wife’s solicitor to examine theaccounts and files but the wife gave her evidence on February 17th toavoid the need for her further attendance in Court. The case wasconcluded at the third hearing on March 3rd and the three justices thensitting, of whom two were the two additional justices on February 17thand the third who had not sat either on February 3rd or February 17th,dismissed the husband’s complaint. It was held in appeal by the husbandthat it was clear from the statement of their reasons that the three justiceswho made the order of March 3rd dismissing the husband’s complainthad acted on evidence given by the husband at the fresh hearing ofFebruary 3rd at which none of the three justices had been present. Quiteapart from a breach of the provisions of the Magistrate’s Act 1952, theCourt held that “justice had not manifestly been done”. There was aquorum present at the final meeting and reasons had been delivered.In the present case though there was a quorum present at all meetings,the absence of reasons given by the Council make it impossible to evenspeculate how the members of the Council arrived at their decision.
Having regard to the principles laid down in the above cases, I am ofthe view that the petitioner is entitled to succeed in his application for awrit of certiorari to quash the proceedings of the Council finding himguilty on Charge 2 (a) on the ground t hat there has been a violation of theprinciples of natural justice.
There is another aspect of this same principle which, in thecircumstances of this case arises for consideration. Under Section 14 ofthe Medical Act the members of the Council hold office for a term offive years and are eligible for re-election or re-nomination. Since thePenal Cases Committee which investigated into the complaint againstthe petitioner must consist of the President and four members of theCouncil, some of the ten members of the Council who sat on theDisciplinary Inquiry had to be members of the Penal Cases Committeewhich investigated the case against the petitioner.
Subsequently I have been informed by the Registrar of the MedicalCouncil that the members of the Penal Cases Committee who investigatedthe complaint against the petitioner and submitted a report to theCouncil consisted of—
Dr. Wijerama—PresidentDr. W. D. L. FernandoDr. M. O. R. Medonza •
Dr. S. RajanayagamDr. R. P. Wijeyratne
88 1
ALLES, J.—Paul 'v. Wijerama
According to Rule 1 of the let Schedule to the Regulations, the PenalCases Committee shall consist of the person who for the time being isPresident of the Council and 4 other members elected by ballot. Theconstitution of the Penal Cases Committee that considered the petitioner’scase before deciding to submit a report to the Council consisted of fivemembers who subsequently functioned as judges at the DisciplinaryInquiry.
Rules 8, 9 and 10 deal with the duties of the Penal Cases Committeeand read as follows: —
The Committee shall have the following duties —
to investigate any complaints or reports which arereferred
in accordance with these regulations to the Committeeby the President or by the Council as the case may be, and
to report to the Council upon Buch investigations.
Where a complaint or report is referred to the Committee under
these regulations, the Committee shall, as soon as may bepracticable, investigate such complaint or report, and havingregard to any explanation or affidavits preferred therewith,consider such complaint or report, and report thereon to the …Committee.1
The Committee may, if it thinks fit, before making its report onany complaint or report referred to it, cause such furtherinvestigations to be made or obtain such advice or assistancefrom the Proctor or counsel, as it may consider necessary orrequisite in the circumstances of the case.
Having regard to the wide powers given to the Penal Cases Committeeunder the above rules it is impossible to state to what extent the membersof the Council who heard the petitioner’s case and who had earlierfunctioned as members of the Penal Cases Committee, were influencedin their ultimate decision by the investigations conducted by them asmembers of the Committee. The Regulations, however, provided thatthe President of the Council shall preside at meetings of the Penal CasesCommittee and could also function as a member of the DisciplinaryInquiry. Dr. Wijerama therefore had no alternative but to presideat the hearings of the Penal Cases Committee and was entitled, as amember of the Council, to sit on the Tribunal and preside at its meetings.This was unfortunate, particularly as an application was made at thecommencement of the proceedings that he should not function as amember, as the petitioner had cited him as a witness to speak to certainfaota. Counsel drew attention to Regulation 44, which empowered amember of the Council to act as Chairman, if the President or Vie®President was unable to act. In the course of the proceedings Dr. Mirando,the former President, did speak to an exchange of words betweenDr. Wijerama and the petitioner in connection with the complaint ofMr. Paul against Dr. Perera on 24th February 1970. The petitioner alleged
382
ALLES, J.—Paul v. IVijerama
that Dr. Wijerama was endeavouring to “ soft pedal ” the allegationagainBt Dr. Perera and wanted Dr. Wijerama cited as his witness to giveevidence on his behalf. It is no answer to such an application, thatCounsel for the petitioner could thereby obstruct the proceedings of theinquiry by summoning all the members of the Council as witnesses.No Counsel of any standing would or could be expected to act in such anirresponsible manner. In the circumstances it might have been betterif Dr. Wijerama did not sit on the Tribunal which heard the petitioner’scase. The Council however overruled the application to call Dr. Wijeramaas a witness, and Dr. Wijerama continued to preside at the sittings.I have no doubt that, having regard to the responsible position whichthe President held, Dr. Wijerama would have been particularly careful,not to allow his judgment to be coloured in any way by the nature ofthe investigations he had previously conducted, or be influenced by anypersonal knowledge of the facts, but it is a well nigh impossible task forany person in such circumstances particularly if he is a layman toexercise that degree of detachment essential for the conduct of a judicialproceeding. But although Dr. Wijerama decided to preside over thesittings of the Disciplinary Inquiry, it was not essential that the othermembers of the Penal Cases Committee should have functioned asmembers of the Disciplinary Committee which heard the petitioner’scase particularly as the Standing Orders required only a quorum offive members for a sitting of the Council.
De Smith enunciates the principle in the following way at p. 253 :—
A person “ is disqualified if he has personally taken an active partin instituting the proceedings, or has voted in favour of a resolutionthat the proceedings be instituted ; for he is then in substance bothjudge and party.”
In R. v. MiUedge1 a complaint was made in regard to a nuisance. TheTown Council was directed to abate the nuisance. They consideredthe report of a medical man and passed a resolution that necessary stepsbe taken to abate the nuisance.. Summons was taken out and the ordermade. Milledge and Robens were members of the Council when theresolution was passed and took an active part in the discussions. Theywere on the bench of justices when the summons came up for hearing.The defence objected on the ground that they were prosecutors. Said(Cockburn, C. J. at p. 333 :—
“ The mere fact that some of the council who passed resolutions forthis prosecution were borough justices might have been no objectionto the order, if these justices had not assisted at the hearing of thesummons. But I cannot see how we can get over the fact of theirpresence when the order was made. They practically made an orderin a case where they were prosecutors.” 1
1 {1873) 4 Q. B. D. 332.
AJLLE8, J.—Paul v. Wijerama
888
In R. v. Lee1 one Shaw was prosecuted for the sale of meat unfit for humanfood under the Public Health Act. The prosecution was instituted inpursuance of a resolution passed at a meeting of the Sanitary Committeeof the borough and approved by a resolution passed at a subsequentmeeting directing the town clerk to take steps against Shaw. Lee was amember of the corporation and of the sanitary committee and was presentat the meeting at which the latter resolution was passed and concurredin the resolution: ’ He later sat as one of the justices at the hearing ofthe information and acted as Chairman of the justices.
Field, J. stated that:—
" There is no warrant for holding that, where the justice has actedas a member by directing a prosecution for an offence under the Act,he is a sufficiently disinterested person as to be able to sit as a judgeat the hearing of the information.”
In Queen v. Gaisford3 a justice taking part in instituting proceedingsagainst a ratepayer was held, following R. v. Milledge, to be deemed tobe within the rule disqualifying him from sitting as a Magistrate on theground that it afforded a reasonable suspicion of bias on his part thoughthere might not have been bias in fact.
In Leeson v. General Council of Medical Education and Registration9the Council held an inquiry in which they adjudged a medical practitionerto be guilty of infamous conduct in a professional respect and removedhis name from the register of medical practitioners. The proceedingswere instituted by the managing body of a company called the MedicalDefence Union, whose object was to protect the character of medicalpractitioners and to suppress and prosecute unauthorised practitioners.Two out of the twenty-nine persons who held the inquiry were members ofthe Medical Defence Union but not of the Managing body. It was heldby Cotton and Bowen L.JJ., Fry L. J. dissenting, that the two membershad not Buch an interest in the matter in question as to disqualify themfrom taking part in the inquiry. Bowen L. J. held that as a matter ofsubstance and of fact the two members were not accusers on this particularoccasion but he severely criticised the action of the Council in includingthem aB members of the Tribunal. He said—
“ I think it is to be regretted that theBe two gentlemen, as soon asthey found that the person who was accused was a person againstwhom a complaint was being alleged by the Council of a society towhich they subscribed, and to which they in law belonged as. members,did not at once r etire from the Council. I think it is to be regretted,because judges, like Caesar’B wife, should be above suspicion, and inthe minds of strangers the position which they occupied upon thecouncil was one which required explanation. Whatever may be theresult of this litigation, I trust that in future the General Medical 1
1 (1882) 0 Q. B. D. 394.* (1892) 1 Q. B. D. 381.
3 (1889) 43 Oh. D. 330.
ALLES, J.—Paul v. Wijerama
•84
• Council will think it reasonable advice that those who sit on these■ inquiries should cease to occupy a position of subscribers to a society■••which brings them before the Council.”
The dissenting Judge Fry L. J. stated—
“I think that it is a matter of public policy that, so far as is possible,; • judicial- proceedings shall not only be free from actual bias or prejudice: of the judges, but that they shall be free from the suspicion of bias orprejudice ; and I do not think that subscribers to associations for thepurpose of carrying on prosecutions can be said to be free from suspicionof bias or prejudice in the case of prosecutions instituted by the■. associations to which they subscribe.”
In the present case the position is much more serious than what transpiredin Leeson’s case since five of the investigators sat as Judges at theDisciplinary Inquiry and subsequently came to a finding adverse to thepetitioner. At the argument before us we were not informed of theprovisions of. the law in England corresponding to the Penal CasesCommittee, but in view of the decision in Leeson’s case, it seems reasonableto infer that in England since 1889 they adopted a principleno different from that laid down in Leeson’s case, namely thatit is improper that the prosecutors should subsequently adopt therole of Judges. This would therefore be an added reason whythe proceedings have to be quashed due to a failure to follow the principlesof natural justice, the ground being the likelihood of bias towards theissue.
Before I conclude I wish to advert to an unfortunate episode thatoccurred when this application was being argued before us. UnderRegulation 17 the decision of the, Council whether the name of thepractitioner should be erased from the relevant register was postponedfrom 15th February 1971, for a year. The petitioner has averred inhis petition that this in itself has caused him grave mental enxiety sufficientto cause serious detriment to his professional work. When the decisionof the Council is so postponed under Regulation 21, the practitioner hasto be notified six weeks previously, of the date of the subsequent meetingrequiring him to appear. Three weeks before the date fixed forthe meeting the practitioner can ask his case to be reconsidered on freshmaterial. When the notice is sent under Regulation 21 the Presidentmay require the practitioner to furnish the Registrar with the names andaddresses of a specified number of persons to whom reference may bemade a3 to the character of the practitioner. The petitioner filed thispresent application on 16th April 1971 and Proctors for the Counciltendered their statements of objection on 17th August 1971. The“ subsequent meeting ” of the Council at which further action was tobe taken against the petitioner was fixed for 17th March 1972. Thepresent application was being argued on the 25th, 26th, 28th Januaryand 1st, 2nd and 3rd February 1972. On 28th January 1972 whichwas Bix weeks prior to the subsequent meeting fixed for 17th March a
WIJAYATILAKE. J.—Paul v. Wijerama
385
notice was sent under registered cover under Regulation 21 requiringthe petitioner to transmit forthwith the names and addresses of fivepersons to whom reference may be made as to his character and requiringhim to set out any facts which had arisen since the hearing, for a re-consideration of his case. He was also required to submit any statementor affidavit upon which he wished to rely and which relates to his conductor capacity since the hearing of the case. Learned Counsel for the CouncilMr. S. Nadesan, Q.C., stated that he was unaware that the proctors forthe Council had sent the letter of 28th January to the petitioner.Although the Regulations make provision for the procedure to be followedbefore the “ subsequent Meeting ” is held, there is no impediment inthe Regulations to the postponement of the subsequent meeting to alater date. It is regrettable that this was not done when the Councilwas aware that this application was being argued before the SupremeCourt, and the impression unnecessarily created thereby that there wasa lack of courtesy to this Court by sending the notice under Regulation21 on a date when this application was set down for argument. Anyaction under Regulation 21 would have been unnecessary if the Councilhad only decided to postpone the meeting of 17th March until the decisionon this application was made known.
For the reasons stated in my judgment, I am of the view that there hasbeen a breach of the principles of natural justice in the conduct of theinquiry against the petitioner and I would therefore quash the proceedings.The petitioner will be entitled to his costs, which we fix at Rs. 3,000.
WIJAYATILAKE, J.—
I have had the advantage of perusing the judgment prepared by mybrother Alles J. which deals with the facts and the law very exhaustively.With great respect, I am in entire agreement with him that the Applicationfor a Writ of Certiorari should be allowed.
I do not think I have anything useful to add except to make a fewcomments on certain aspects of this case which need emphasis. Therespondents have stressed the fact that the question whether the petitioneris guilty of “ infamous conduct in any professional respect ” is a matterto be decided by the Council under the Medical Ordinance and . the saiddecision is subject to an appeal to the Minister whose decision shall befinal in terms of section 18 of the said Ordinance. The respondentsfurther aver that the petitioner having failed to avail himself of the remedyprovided by section 18 of the Medical Ordinance he is precluded in lawfrom seeking relief as prayed for in this Court by way of Writs ofCertiorari, Prohibition and /or Mandamus.
Therefore the principal question which arises in these proceedings iswhether the Medical Council has arrived at a decision according to law.The petitioner has sought to set out several reasons to show that thepurported decision of the Council is both irregular and illegal asthe proceedings of the Council are very conspicuously contrary to theprinciples of natural' justice.
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WIJAYATTLAKE, J.—Paul v. Wijeramo
The Medical Ordinance provides for a quorum of at least five membersat every sitting of the Council. The respondents state that at every meetingin these proceedings there were at least five members of the Councilwho were present and who were not absent at any single meeting; andtherefore the absence of some of the other members, who ultimatelyparticipated in the decision, at some of the meetings is of little consequence.In other words their answer is that the essential requirements in regardto a quorum were satisfied as throughout the proceedings there was aconstant group of five members. In my opinion, this would be anadequate answer if those who purported to make the decision in questionwere only this group of five members who were present right through.Even a proceeding of this nature may be open to question because one ormore of the members present during a part of the proceedings may haveexercised a strong influence on one or more of this “ constant ” five inthe course of a protracted Inquiry. However, as I have already observed,it appears to me, unlike in a Trial by jury where the members may nothave a specialised knowledge of the matters in issue, a proceeding beforethe Medical Council where the members are assumed to have suchspecialised knowledge would not be vitiated by a situation as the one Ihave mentioned.
What is important in a proceeding before the Medical Council sitting,as in this instance, as a Disciplinary Committee, is the compositionof this body at the stage it sought to make a decision. Of theeight members who were present on the last date when the decision wasmade Dr. C. L. A. de Silva was absent on the 2nd day of the meeting of theCouncil and Dr. M. 0. R. Medonza was absent on the 8th day bf themeeting. On the date Dr. de Silva'was absent Dr. T. D. H. Pererawho initiated this Inquiry-was cross-examined. My brother Alles J.has taken the view that the absence of Dr. de Silva cannot affect thedecision cf the Council in regard to the finding on charge 2(a) thatDr. Paul has been guilty of infamous conduct in a professional respect bydrawing attention to his professional skill. With great respect on aconsideration of the several charges the petitioner had to face, particularlycharge 2 (b) that he did by the publication of the article “ Not me ”depreciate the professional skill, knowledge, service or qualifications of Dr.T.D.H. Perera, I am of opinion that these charges are so inter-connectedthat it is difficult, at this stage, to say with confidence, that if Dr. deSilva was present at the cross-examination of Dr. Perera he would not havearrived at a different decision (assuming, of course, that he did join themajority when the decision was taken). In an Inquiry of this naturedealing with the object and intention of a person accused the mentalelement playB an important part. Gould we now say with confidencethat the evidence of Dr. Perera in cross-examination would not havebeen of some significance in assessing the evidence of Dr. Paul ?
As for the absence of Dr. Medonza on the 8th day of the Inquiry,I am in entire agreement with my brother that the defence of Dr. Paulhas been prejudiced and that very materially, as it was on this day
WIJAYATILAKE. J.—Paul v. Wijerama
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Dr. Paul was cross-examined and re-examined. Dr. Paul has stressedthe fact that'he was only interested in clearing a misconception and thatwas his only object. Assuming that Dr. Medonza voted with the majority,could we say with confidence that the evidence of Dr. Paul on thiscrucial question would not have influenced his judgment ? The veryobject of calling a person accused would be nullified if his evidence isignored altogether or obtained second-hand in arriving at a decision,at the end of an Inquiry of this nature. I have no doubt whatever thatthe defence of Dr. Paul has been seriously prejudiced by the participationof this member at the voting, having absented himself on the most vitaldate of the Inquiry. It may well be that both Dr. de Silva andDr. Medonza had the opportunity of reading the proceedings held duringtheir absence or gathering the material from one or more of the memberspresent, but this alone is not sufficient when they seek to act judicially.Demeanour of a witness is a vital factor in the assessment of evidence.This cannot be left to one’s imagination.
If Dr. de Silva and Dr. Medonza had refrained from voting in view oftheir absence at the meetings referred to, perhaps the decision may havebeen otherwise. I might state that we have to go on the footing of aminimum majority as we have not been furnished any information asto how the voting was registered. Regulation 39 provides for theChairman to announce the number of members of the Council who havevoted each way only in the event of the declaration of the Chairmanafter counting the votes being challenged. Presumably, here there wasno such challenge and we do not know how the eight members who werepresent voted.
The question does arise whether the charge 2 (a) could have been dealtwith only on the production of the two articles “ Talking point ” and“Not me” without any other evidence. In other words, is thepublication “Not me” perse sufficient to prove the charge madeunder 2 (a) ?
In my opinion the proof of the publication by itself would not besufficient to establish this serious charge which on the face of it involvesthe mental element of the person responsible for the publication.Therefore a tribunal inquiring into his conduct is entitled to know whetherhe has any explanation for the manner in which he has acted ; and whenhe seeks to give an explanation it is the duty of those sitting in judgmentto hear the evidence, assess it and only thereafter arrive at a decision.If there is a failure to do so, however correct the “ decision ” may be itwould be no decision in the eye of the law. It is a well known principlethat justice should not only be done but should seem to be done. Aperson accused should be able to leave the “ dock ” with the satisfactionthat he has been heard and his evidence duly assessed before arrivingat the decision made against, him. Whichever way one may look atthis proceeding, one cannot say with confidence that this importantprinciple has been kept in mind. I presume this Inquiry has taken this
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WIJAYATILAKE, J.—Paul v. Wijeroma
course as a quorum consists of only five members but it must not beforgotten that the Council in this instance has been virtually functioningas a Disciplinary Committee and therefore it should have conformed tothe strict procedure contemplated in an Inquiry of this nature, unlike atan ordinary Meeting of the Council dealing with matters not giving riseto justiciable issues.
In coming to the above conclusion I have constantly kept in mindthe ratio decidendi in the Canadian case of Regina v. Committee on Works ofHalifax City Council. Ex parte Johnston1 (1962) 34 D.L. R 45 which dealtwith an Application for a writ of certiorari to quash a decision of theHalifax Committee on Works ordering the demolition of a building asno longer suitable for habitation or business. It was held that theCommittee had a duty to act judicially and participation by the fourCommittee members who had not heard all the evidence and argumentsin consideration and decision on the resolution to order demolition of thebuilding was contrary to the principles of natural justice. These four weredisqualified and, whether or notan effective decision could have been madeby a quorum of four, without the participation of the disqualified members,their participation rendered the decision invalid. Our task has beenconsiderably lightened as both Mr. Jayewardene and Mr. Nadesan stronglyrely on this judgment: However, Mr. Nadesan seeks to distinguish thiscase on the ground that in the instant case nothing substantial of anyrelevance to the charge 2(a) were elicited in the evidence of the witnesseswhen the members (who participated in the decision—Dr. C. L. A. deSilva and Dr. Medonza) were absent. It is submitted that even ifthey were present and heard the evidence it would not have materiallyaffected their verdict in respect of charge 2 (a). With great respect I amunable to agree with this submission. As I have already observed, onecannot say with confidence that the judgment of these absent memberswould not have been affected if they had the opportunity of seeing, andhearing the witnesses when they gave their evidence.
On a petition presented by Dr. T. D. H. Perera the Medical Council hasasked Dr. Paul to shew cause. Having done so would it be proper whenDr. Perera gives evidence with reference to his complaint for a member toabsent himself and thereafter participate in the decision ? It is muchmore so when Dr. Paul was being cross-examined. Having grantedDr. Paul this opportunity of shewing cause, at the most crucial stage amember who sits in judgment absents himself and later participates inthe decision. Of what value is such a decision ? In my opinion it iscontrary to the fundamental principles of natural justice. I might statethat in the Canadian case they were dealing with the demolition of adilapidated building but here the Medical Council was dealing virtuallywith the prospective demolition of the professional career of an eminentsurgeon. In my opinion, the principle set out in that oase should apply 1
1 (1982) 34 D. L. R. 45.
WUAYATILAKE, J.—Paul v. Wijerama
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more forcefully in a case of this importance. Furthermore, it is quiteevident that Dr. Medonza’s absence when Dr. Paul was cross-examinedand re-examined, and his participation with the other members at thestage of voting, is a violation of the well known principle of audi alterampartem.
I would accordingly hold that the decision the Medical Councilpurported to make was not a valid decision and it is therefore null andvoid. In the circumstances, the objection that Dr. Paul should have,in the first instance, conformed to section 18 of the Medical Ordinanceby way of an appeal to the Minister cannot be sustained. Clearly thedecision contemplated in section 18 is a decision according to law andnot any decision however irregular and illegal it may be.
In the light of my. above finding I do not think it necessary to dealwith the question of fact as to whether on the evidence led in theseproceedings the allegation contained in charge 2(a) has been proved.Learned Counsel for the petitioner has apart from questioning theprocedural irregularities at this Inquiry, questioned the correctness ofthe decision on the facts. With great respect I agree with my brotherAlles J. that by seeking to interfere with a decision on the facts thisCourt should not trespass on the functions of the Medical Council, whoare the proper judges to decide this issue. However, my own view is thatthis Court is not precluded from questioning a decision which is manifestlyerroneous. Now that we have had a very exhaustive argument on thefacts it may be of some avail if I set down my own assessment of thesituation created by the publications in question.
Dr. Paul has explained that his one object was to clear a misconceptionas there was a rumour that he had performed this operation. In facttwo of the foremost physicians at the General Hospital had casuallyquestioned him on the subject. The rumour that was spreading wouldhave certainly caused serious embarrassment to him as he had nothingto do with it. His reaction in writing to the Press denying that heperformed this operation is now in question. Did he do so with the objectof advertising for the purpose of obtaining patients or promoting hiB ownprofessional advantage and thereby is he guilty of infamous conduct ina professional capacity ? It must be kept in mind that Dr. Paul has beenacquitted of charge 2 (6) of depreciating the professional skill, knowledge,service or qualification of Dr. T. D. H. Perera. No doubt, it wouldhave been prudent of Dr. Paul if, before writing to the Press, he drew, theattention of the Medical Council to the aspersion contained in the article“ Talking point ”, but this procedure may well have taken time'and abelated explanation would perhaps have been of little value. The questionis whether his rushing to the Press was with the object set out in charge 2(a).In this context it may be pertinent to assess Dr. T. D. H. Perera’s ownreactions to a publication of this nature. When Dr. Paul’s clarification“ Not me ” appeared in the “ Observer ” Dr. Perera was furious about it,considering it an aspersion on him and he rushed to the Permanent
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WIJAYATILAKE, J.—Paul v. Wijerama
Secretary and the Medical Superintendent, and the latter had telephonedto the Editor of the Observer, but the Editor had refused to publish thecorrection ! What would have been the position if the Observer publishedthe fact that Dr. Perera did not perform an operation of this nature.Would it amount to an advertisement of his professional skill ? Couldwe therefore say that when Dr. Paul had nothing to do with this surgicalmisadventure he was acting with the object of advertising himself whenhe made this correction ?
There is another aspect to this question. Despite the publication“ Not me ” on 17.2.1970 at the instance of Dr. Paul which must havereceived wide publicity in the medical world here, the Medical Councildid not take any action in the matter till Dr. Perera addressed his petitionto the Council on 22.4.1970. I have no doubt the Medical Council isquite vigilant about the violation of their rules and regulations and code ofmedical etiquette and ordinarily they would not have ignored an articlepublished at the instance of a Doctor or Surgeon tantamount to anadvertisement of his professional skill. This again shows that at thestage it appeared in the Press it was not recognised as a violation of anyrule of medical etiquette—and it developed into a confrontation onlyon the representation made by Dr. Perera. As it appears to me theMedical Council having acquitted Dr. Paul of the other charges shouldhave proceeded to do so in respect of this charge too. Perhaps ifDr. Perera through the Medical Council clarified the matter when thearticle “ Talking point ” appeared and explained that it was not a hole inthe heart operation it would have put an end to all the rumours current;and the necessity for an explanation by Dr. Paul would not have beennecessary. As 1 see it a mere storm in a tea cup has developed into aserious confrontation.
My brother Alles J. has referred to the anomalous procedure set outin the Regulations which permit the members of the Penal Committeewhich holds the preliminary Investigation to sit in judgment at theInquiry proper. Here too the President and four others have functionedin both proceedings. This seems highly inequitable as the tendencywould be for these members who have conducted the investigation tojustify their recommendation to the Council at least in part. However,I do not think that on this ground we can in law question the regularityof these proceedings as they conform to the Regulations. Sooner theseregulations are amended the better would it be for the medical professionas any member who faces a charge should have the satisfaction that he isbeing tried by members of the Council, who have not functioned asinvestigators and who have not already arrived at a decision.
I share my brother’s reaction to the conduct of the Medical Council inaddressing a letter to the petitioner during the hearing of this Applicationrequiring him to attend a Meeting of the Council when it would determinewhether or not to order his name to be erased from the relevant medicalregister. The petitioner has also been requested to furnish the namesof five persons to whom reference may he made as to his character!
H. N. G. FERNANDO, C. J.—The Public Trustee v. Rajaratnam
391
It is true that the Counoil has conformed to Regulation 21 in issuingthis notice, but at the same time as this matter was sub judice before thisCourt the Council should have at least drawn the attention of this Courtbefore taking steps to issue this notice. Counsel for the respondentsshared our surprise at this episode and we have accepted his expressionof regret.
With respect I agree with the order proposed by my brother.
Application allowed.