040-SLLR-SLLR-2006-V-2-DR.-KIRUSHNAR-SUPPIAH-vs.-SRI-LANKA-MEDICAL-COUNCIL.pdf
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DR. KIRUSHNAR SUPPAIAHvs.SRI LANKA MEDICAL COUNCILCOURT OF APPEAL.
SRISKANDARAJAH, J.
CA 251/2004.
FEBRUARY 15, 2006.
Writ of Certiorari – Medical Ordinance – Section 20 (1)(a), section 20(4)- Section26, section 29, section 41, section 33, section 38, section 41 amended by Act,No. 30 of 1987 – section 74A – Registration of practitioners entitled to practicemedicine and surgery and registration of practitioners qualified to practicemedicine and surgery – Difference – Refusal to register the name as a MedicalPractitioner.
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The petitioner sought a Writ of Certiorari to quash the decision of therespondents not to include the petitioner's name as a Medical Prattitioner inthe Medical Register in terms of section 20 (1) (aHb) or section 26, on thebasis that, he was registered as a Medical Practitioner in 1983 under the Lawsthat prevailed at that time. The respondents contended that the petitioner wasregistered as a person entitled to practice Medicine and surgery under section41 and that the petitioner was at no time registered under section 20(1) (a).
HELD:
The Scheme of the Medical Ordinance has laid down a clear distinctionbetween the Medical Practitioners qualified to practice Medicine andpersons entitled to practice Medicine.
Under Section 20 (1) (a) the Registrar is required to keep and maintaina register for Medical Practitioners qualified to practice Medicine andSurgery and or separate register under Section 41 to registerpractitioners who are entitled to practice Medicine and Surgery. Thequalification for the registration in the register maintained under section20(1) and Section 41 are different.
By the Medical Amendment Act No. 50 of 1987 the Registrar is requiredto keep and maintain another register under section 20(1 )(bb)containing the names of persons entitled to practice Medicine andSurgery under section 41.
The petitioner’s claim that he was a Registered Medical Practitionerin 1983 has not been substantiated. He was at no time registeredunder Section 20(1 )(a), but was only registered as a person entitled topractice Medicine and Surgery under section 41. The petitioner is notentitled to claim that his name should be included in the Registermaintained under section 20(1 )(a), as the register contains MedicalPractioners registered under section 29 – the petitioner falls within thecategory of the exception provided under section 38(b).
APPLICATION for a Writ of Certiorari.
Romesh de Silva PC with Geethaka Gunawardane for petitioner.
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Shibly Aziz PC with Ms Senany Dayaratne and Rohan Deshapriya for 1stand 2nd respondents.
Cur.adv.vult.
April 25,2006.
SRISKANDARAJAH, J.The Petitioner in this applicatoin has sought a writ of certiorari to quashthe decision of he Respondents not to include the Petitioner’s name as aMedical Parctitioner in the registers maintained in terms of section 20(1 )(a)and/or section 26 of the Medical Ordinance. The Petitioner also has soughta writ of mandamus directing the Respondents to publish a copy of theMedical Register kept under and in terms of sections 20(1 )(a) and/or 26with the Petitioner’s name included in it and for a writ of prohibition preventingthe Respondents from publishing any register of Medical Practitioners inthe Gazette in terms of section 29 and/or any other section of the MedicalOrdinance.
The Petitioner submitted that he was registered as a Medical Practitioneron the 12th September, 1983 under the laws that prevailed at that time.Since then a register containing his name was never published in theGovernment Gazette although there have been several publications of aregister of Medical Practitioners in the year 1992, 2002 and 2003. ThePetitioner further submitted that the Petitioner’s registration under section20(1 )(a) of the Medical Ordinance made on 12th September 1983 has notbeen deleted and/or erased and thus his registration in the registermaintained in terms of section 20(1 )(a) of the Ordinance still continues.
The 1 st and 2nd Respondents submitted that the Petitioner was grantedregistration No. 1390 and was registered on 12.09.1983 as a person entitledto practice medicine and surgery under section 41 of the Medical Ordinanceand they further submitted that the Petitioner was at no time registeredunder section 20(1 )(a) of the Medical Ordinance.
The scheme of the Medical Ordinance provides in Part (V) MedicalPractitioners, Part (VI) Dentist, Part (VII) Midwives, Part (VIII) Pharmacists,Part (VIIIA) Para-Medical Assistants and Part (IX) Nurses. The above
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categories of professionals are required by the Medical Ordinance to beregistered to practice the respective profession.
The Registrar who is appointed by the Medical Council is required bythe Medical Ordinance to maintain registers provided in section 20(1) ofthe said Ordinance and enter in the appropirate register the name of everyperson who proves his claim to be registered as provided by section 20(4).An applicant for registration shall deliver to the registrar as provided bysection 20(6), the appropriate declarations required by the Schedules whichshall be declared before a Justice of the Peace or a Commissioner forOaths, and such other evidence of his right to be registered as the registermay require. The power of the Medical Council to erase the name of anyperson from the register is provided under section 25.
The registration as a medical practitioner is provided under section29(1) of the said Ordinance and section 33 provides the grounds underwhich the name of a medical practitioner may be erased from the register.Section 38 prohibits a person to practice medicine or surgery other than amedical practitioner. This section provides :
38. No person, not being a medical practitioner, shall-
take or use any name, title, or addition implying a qualification topractice medicine or surgery by modern scientific methods, orimplying or tending to the belief that he is a medical practitionerregistered under this Ordinance, or by any act or omissionintentionally cause or permit any person to believe that he is aregistered medical practitioner, and to act upon such belief; or
except as mentioned in section 41, practice for gain, or profess topractice, or publish his name as practising medicine or surgery.
An exception is provided under section 38(b) for a person to practisemedicine other than a medical practitioner if that person is a Governmentapothecary, estate apothecary or estate dispenser as provided in section41 (1). This section has made it lawful for these categories of persons topractice medicine provided they are either employed in the public serviceas an apothecary and for the time being in charge of a dispensary or
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hospital or registered under sub-section (2), (2A), (2B), (2C) of section 41respectively. The Medical Ordinance under the above sub-sections requiresthe registrar to maintain separate registers under the relevant subsectionto register the persons under the relevant sub-section and erase therefrom the name of any person ordered to be erased by the Medical Councilunder sub-section (3) of section 41.
Section 41 (3) provides that where it is shown to the satisfaction of theMedical Council that any person being an apothecary entitled to practisemedicine and surgery under subsection (1 )(b) or under subsection (1 )(c)or under sub-section (1 )(cc) or under subsection (1 )(ccc) or any estateapothecary entitled to practice medicine and surgery under sub-section(1) (cc) or any estate dispenser entitled to practice medicine and surgeryunder sub-section (1 )(e) has been guilty of inefficiency or negligence inthe treatment of a patient or has been guilty of conduct which shows himto be unfit to practice medicine and surgery, the Medical Council maymake an order that such person be suspended from the privileges andimmunities conferred on him by this section either permanently or duringthe period specified in the order, and where circumstances of the case sorequire an order that the name of any person be erased from the registerof apothecaries maintained, as the case may be, under sub-section (2) orsub-section (2A) or sub-section (2B) or sub-section (2BB) or an order thatthe name of any person be erased from the register of estate dispensersmaintained under sub-section (2C).
(4) Every order under sub-section (3) shall be published in the Gazette.
The scheme of the Medical Ordinance has laid down a clear distinctionbetween the medical practitioners qualified to practice medicine and personsentitled to practice medicine. It is clear that under section 20(1 )(a) theregistrar is required to keep and maintain a register for medical practitionersqualified to practice medicine and surgery in Sri Lanka and the registrar isalso required to keep and maintain separate registers under section 41sub-section (2), (2A), (2B) and (2C) to register any Government apothecary,any estate apothecary, any Government apothecary (with the requiredexperience and qualification) and any estate dispenser respectively asbeing entitled to practice medicine and surgery. The qualification for theregistration in the registers maintained under section 20(1 )(a) and under
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section 41 sub-section (2), (2A), (2B), (2C) are different. The grounds forthe medical practitioner’s name to be erased from the register (section 33)and the grounds for the names of categories of persons entitled to practicemedicine to be erased from the respective registers (section 41 (3) aredifferent.
By the Medical (Amendment) Act, No. 30 of 1987 the aforesaiddistinction between the medical practitioners qualified to practice medicineand surgery and the persons entitled to practice medicine and surgery isclearly laid down. By this amendment Act, the registrar is required tokeep and maintain another register under section 20(1 )(bb) containing thenames of persons entitiled to practise medicine and surgery under sub- .section 2, 2A, 2B and 2C of section 41. By this amendment the namesregistered under the aforesaid four separate registers will be kept andmaintained in one register as provided under section 20(1 )(bb).
This amendment Act in.section 74A provides:
“Unless the context otherwise requires every reference toapothecary in this Ordinance and in any other written law shallbe deemed to be a reference to assistant medical practitioner"
Even though the Petitioner claims that he was registered as a medicalpractitioner on 12th September, 1983 under section 20(1 )(a) of the MedicalOrdinance he has not submitted any evidence to substantiate his claim.The Respondents have categorically denied this claim and stated that thePetitioner was at no time registered under section 20(1 )(a) of the MedicalOrdinance but was only registered as a person entitled to practice Medicineand Surgery under section 41 of the said Ordinance.
The petitioner submitted that the Respondents are obliged under section27 of the said Ordinance after 1 st January of each year to cause a copy ofeach register as it exists on such first day of January to be published inthe Gazette. The Petitioner further submitted that since the petitioner'sregistration the Respondents have published in the Gazette registers ofMedical Practitioners only in the year 1992 and thereafter 2002 and 2003and therefore the Respondents are in breach of their statutory duty to publishthe medical register every year. The Respondents have explained the
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difficulty in publishing the medical register every year. They have submittedthat due to many registers maintained by the Registrar and due to eachregister containing a vast number of names, it has been practicallyimpossible, due to the work involved for the Government Printer to ensurean annual publication of each register as required by section 27 of theaforesaid Ordinance.
The Petitioner submitted that the Respondents are in breach of theirduties in terms of the said Ordinance by the failure to include the Petitoner’sname in the register of Medical Practitioners which was published in theyear 1992 (P3). Therefore he prayed that the Respondent’s decision not toinclude the Petitioner’s name in the said register maintained under and interms of Section 20(1 )(a) and/or 26 and published in terms of section 27 isultra vires, arbitrary, wrongful and/or unlawful and be quashed.
The Petitioner’s entitlement to have his name entered in the relevantregister has already been discussed above and the Petitoner under therelevant provisions could have his name registered only under section41(2) and it would have appeared in the said relevant register kept andmaintained under section 41 (2) before the Medical (Amendment) Act, No.30 of 1987 was brought into operation. Thereafter his name should havebeen included in the register maintained under section 20(1 )(bb) but thepetitioner is not entitled to claim that his name should be included in theregister maintained under section 20(1 )(a) as this register contains theMedical Practitioners registered under section 29 of the said Ordinanceand the Petitioners falls within the category of the exception providedunder section 38(b) of Part V. Under these circumstances the Petitonercannot seek to quash a decision (if there is one) not to include thePetitioner’s name in the said register maintained under and in terms ofsection 20(1 )(a) and he is also not entitled to seek a writ of mandamusdirecting the Respondent to publish the Petitioner’s name in the MedicalRegister kept in terms of section 20(1 )(a) and section 26 of the saidOrdinance. Therefore this Court dismisses this application without costs.
Application dismissed.