DR. RANJIT FERNANDO v. SRI LANKA MEDICAL COUNCIL

032-SLLR-SLLR-2003-V-3-DR.-RANJIT-FERNANDO-v.-SRI-LANKA-MEDICAL-COUNCIL.pdf


CA
Koralagamage v Commander of the Army
(Sripavan, J.)
173
DR. RANJIT FERNANDOv. SRI LANKA MEDICAL COUNCILCOURT OF. APPEALUDALAGAMA, J.
CA 1365/2001JUNE 3, 2003JULY 29, 30, 2003
Medical Ordinance – Section 21 (f), 25, 33, 41 (3), 45, 52, 57, 64, 72 -Charges based on negligence – Can the name of the Doctor be erased fromthe Register? What is infamous conduct? – Is negligence an ingredient for acharge of infamous conduct?
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One “A” was admitted to the Karapitiya Teaching Hospital suffering fromMalignent lesion necessitating a fatal masectomy. Subsequent to surgery theaforesaid “A” died. The elder son of the deceased complained to the MedicalCouncil which referred the matter to the Professional Conduct Committee(P.C.C.), which body issued notice containing 2 charges which included one fornegligence in addition to another charge – for not acting with due care requiredof a Medical Practitioner.
It was contended that the two charges were based on negligence, and neitherof the charges referred to grounds authorised by the provisions contained inthe Ordinance which enabled the Medical Council to order, the name of thepetitioner to be erased from the Register – Section 21 (f) and that negligenceis not an ingredient for a charge of infamous conduct.
Held:
The P.C.C. of the Medical Council is competent to determine whetheror not the petitioner was guilty of infamous conduct on the basis of neg-ligence or failure to act with due care.
Per Udalagama/
If It is shown that a Medical man on the pursuit of his profession haddone something with regard to it which would reasonably be regardedas disgraceful or dishonourable by his professional bretheren of goodrepute and competence then it is open to the Medical Council to saythat he has been guilty of infamous conduct in a professional respect."
The P.C.C. is capable of determining whether or not the conduct of thepetitioner had been in fact infamous and the function of the P.C.C. is toregulate the standard of the profession rather than professional stan-dards, negligence could not be of direct concern to the P.C.C. unless itbrings the profession of medicine into disrepute.
In any event this application is premature.
APPLICATION for a writ of certiorari.
Cases referred to:
Allison v G.M. C. – QB 1894 – 750
R v Department of Health & Social Security- 1986 293 BMJ 322 (unre-ported)
L.C. Senaratne. PC., with J.A.J. Udawatte and Upul Gunaratne for petitioner.ShiblyAziz, PC., with Ms. Priyanthi Gunaratne for the respondents.
Cur. adv. vult
CA
Dr. Ranjit Fernando v Sri Lanka Medical Council
(Udalaaama. J)'
175
September 12, 2003UDALAGAMA, J.
The petitioner, admittedly the then Senior Lecturer in Surgery 01of the University of Ruhuna and the Consultant Surgeon at theKarapitiya Teaching Hospital, by his petition dated 30.08.2001prayed inter alia for a grant of a mandate in the nature of writ ofcertiorari to quash the 2 charges made against the petitioner in thecourse of an inquiry held by the Sri Lanka Medical Council conse-quent to a complaint made also admittedly by one Indrajeewa theelder son of the deceased Chandrawathie Abeysinghe.
The facts briefly appear to be as follows:-
The aforesaid Chandrawathie Abeysinghe was admitted to the 10Karapitiya Teaching Hospital suffering from a malignent lesionnecessitating a total Masectomy. Subsequent to surgery on30.11.98 the aforesaid patient Chandarawathie Abeysinghe died.
On 26.07.99 the aforesaid Indrajeewa by his affidavit marked P1Aand filed of record complained to the Sri Lanka Medical Councilwhich referred the matter to the Professional Conduct Committeewhich Body issued notice dated 15.12.2000 (P26) containing 2charges which included one of negligence in addition to another. which charged the petitioner for not acting with due care requiredof a medical practitioner. Counsel who represented the petitioner at 20the inquiry held on 07.09.2001 before the aforesaid ProfessionalConduct Committee raised a preliminary objection in respect of thecharge drawing particular reference to section 15 (2) of theRegulations filed of record marked P2 (2) which Regulations appar-ently were made by the Minister of Health under the provisions ofsection 72 read with sections 25, 33, 41 (3) 45, 52, 57 and 64 of theMedical Ordinance, Chapter 105.
The provisions of section 15 (2) of the Regulation enabled thepetitioner or his Attorney-at-Law to object to any charge on a pointof law.30
. The basis of the objection appeared to be that the 2 chargesframed against the petitioner were based on negligence and thatneither of the charges referred to the grounds authorized by theprovisions contained in the Ordinance which enabled the MedicalCouncil to order where relevant, the name of the petitioner to be
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erased from the Register as contemplated by the provisions of sec-tion 21 (1) (f) of the Medical Ordinance.
Although the learned Counsel for the petitioner in his writtensubmissions had taken objection to the “notice of inquiry” sent tothe petitioner as been bad in law, the petitioner by his due appear-ance at the inquiry, has in my view, waived his right to object to thenotice of inquiry.
Admittedly the petitioner appeared before the Sri LankaMedical Council (1st respondent) comprising members of theProfessional Conduct Committee who were made 2-12 respon-dents.
The pivotal question for determination in this application iswhether as stated by the learned Counsel for the petitioner, the SriLanka Medical Council represented by the Professional ConductCommittee, had jurisdiction to inquire into an instance of negli-gence of a medical practitioner and if found to be negligent whetherthe Professional Conduct Committee could have the name of suchmedical practitioner, erased from the Register as contemplated bythe provisions of section 33 of the Medical Ordinance.
Section 33 aforesaid unambiguously provides for the erasureof a name of a medical practitioner on the grounds of infamous con-duct.
It is apparent to this court that when the aforesaid objectionwas raised before the Board of Inquiry on 20.07. 2001, theChairman of the said Inquiry Board, the Professional ConductCommittee of the Sri Lanka Medical Council, consequent to con-sidering the submissions of both Counsel appearing for the com-plainant and the petitioner decided to try the petitioner for medicalnegligence which amounted to infamous conduct on an amendedcharge (P4A).
The basis of the objection to such amendment was the sub-mission that negligence was not an ingredient for a charge of infa-mous conduct and that the Sri Lanka Medical Council was resort-ing to have a charge of negligence brought under the cover of infa-mous conduct and that the said action was in error.
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CA
Dr. Ranjit Fernando v Sri Lanka Medical Council
(Udalagama, J)
177
However, it is the view of this court that even though chargeNo. 1 contained the word “negligence” in actual fact the complaintmade by Indrajeewa aforesaid did not refer to the negligence of thepetitioner but instead to the negligence of the petitioner’s assistantDr. Gooneratne. It was also observed that apart from negligencethe charge also contained another which read as follows:- “actingwithout due care”. Importantly no submission is forthcoming onbehalf of the petitioner to establish the fact that even acting with-out a duty of care is outside the concept of. infamous conduct.Besides Regulation 13 referred to above in any event undisputed- soly allows for amendment of the notice containing the charges.
"Charges" were interpreted to be those specified in the noticeof inquiry vide part VI of the Regulations.
Regulation 15 (3) also provides for preliminary objections tothe charge.
Regulation 16 (5) (b) even enables a Professional ConductCommittee to uphold such objection and come to a finding that thepetitioner is not guilty of infamous conduct.
Accordingly it is my view that this application is premature. TheProfessional Conduct Committee is not precluded from holding that 90negligence is not an ingredient for infamous conduct even thoughan amendment had been allowed. In an instance where theProfessional Conduct Committee as aforesaid could come to afinding that the petitioner is not guilty of infamous conduct after fur-ther hearing, I would reiterate that this application is clearly pre-mature due to the reason that, if the Professional ConductCommittee so decides the interference of this court would beredundant.
Undoubtedly the Professional Conduct Committee consists ofa Body of eminent and experienced medical specialists who I am 100inclined to the view is competent to determine whether or not neg-ligence and the failure on the part of the petitioner to act with duecare.comprise infamous conduct and make order accordingly.
Infamous conduct as described by Stephen, J. Hadfield in hiswork on “ Law and Ethics for Doctors” contained a section on “theGeneral Medical Council and Discipline in the profession” at page
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33 where inter alia he states as follows:- “the use of the word “infa-mous” in the term “infamous conduct in a professional respect” hasbeen criticized. By use however the term “infamous” has beenestablished and it has been acknowledged that if it is shown that amedical man on the pursuit of his profession had done somethingwith regard to it which would reasonably be regarded as disgrace-ful or dishonourable by his professional bretheren of good reputeand competence, then it is open to the General Medical Council tosay that he has been guilty of “in famous conduct in a professionalrespect.” Allison v G.M.CP'I
The author further adds that there being no definition of thelimits of infamous conduct it is open to the GMC through itsDisciplinary Committee to find that the conduct of the member ofthe profession has in fact been infamous and as such renders himunfit to continue as a member of the profession even though theoffence committed was not directly related to practice of medicine.
In the instant case too I would hold that the ProfessionalConduct Committee of the Sri Lanka Medical'Council is competentto determine whether or not the petitioner was guilty of infamousconduct on the basis of negligence or the failure to act with duecare. As stated above the Professional Conduct Committee is notprecluded from even holding that the petitioner is not guilty of infa-mous conduct.
Of relevance is also the view held by J.K. Mason and R.A.McCall Smith in their work on “Law and Medical Ethics”, 4th Edn.,page 10 on the topic of “the control of medical practice” who stateas follows:- “Its (GMC of U.K.) essential function is to regulate thestandards of the profession rather than professional standards. Asthings stand, negligence is of no direct concern to the Councilunless it brings the profession of medicine into disrepute.”
In any event actions of disciplinary inquiries are subject to judi-cial review. R v Department of Health and Social Securit/2
In all the circumstances, I am of the view that the ProfessionalConduct Committee of the Sri Lanka Medical Council comprising ofeminent professional bretheren of the petitioner and of good reputeand competency, that the said Committee is capable of determin-ing whether or not the conduct of the petitioner had been in fact
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CA
Dr. Ranjit Fernando v Sri Lanka Medical Council
(Udalaaama. J)
179
infamous and that the function of the Professional ConductCommittee aforesaid is to regulate the standard of the professionrather than professional standards.
Negligence in the instant case too could not be of direct con-cern to the Professional Conduct Committee unless it brings theprofession into disrepute, which matter is for the Committee todecide. Besides there is no allegation of mala tides on the part of 150the Professional Conduct Committee or one of the denial of natur-al justice, to warrant the intervention of this court.
In any event this been the initial stage of the inquiry the actionsof a disciplinary inquiry being subject to judicial review I would dis-miss this application of the petitioner thereby enabling theProfessional Conduct Committee of the Sri Lanka Medical Councilto proceed with the inquiry which commenced of 7th June, 2001.
Application dismissed.