JAYAWICKREMA v. PROF. W. D. LAKSHMAN ,VICE CHANCELLOR UNIVERSITY OF COLOMO

028-SLLR-SLLR-1998-V-2-JAYAWICKREMA-v.-PROF.-W.-D.-LAKSHMAN-VICE-CHANCELLOR-UNIVERSITY-OF-COLOMO.pdf


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Jayawickrema v. Prof. W. D. Lakshman, Vice Chancellor,
University of Colombo and Others
235
JAYAWICKREMA
v.PROF. W. D. LAKSHMAN, VICE CHANCELLOR,UNIVERSITY OF COLOMBO AND OTHERS
SUPREME COURTFERNANDO, J.,
WADUGODAPITIYA, J. ANDGUNASEKERA. J.
SC APPLICATION NO. 648/9619TH JUNE AND 22ND JULY, 1998.
Fundamental rights – “Board certification" as a Consultant Anaesthetist – Failureof PGIM to arrange for suitable foreign training – Article 12 (1) of theConstitution.
The petitioner who had obtained the degree of MD (Anaesthesiology) of thePostgraduate Institute of Medicine (PGIM) and successfully completed the periodof local training was sent for foreign training to Sir Charles Gairdner Hospital,Western Australia. Foreign training was a requirement before she could receiveBoard certificatipn as a Consultant Anaesthetist. At the end of the training inDecember, 1995, Dr. Davis under whom she trained and Dr. Cuerden visitingconsultant at the Australian Hospital issued her certificates stating that she hadsatisfactorily completed her training there. However unknown to her there had beena correspondence between the PGIM and Dr. Davis in the course of which Dr.Davis who in the cetificate issued to the petitioner had made no complaint againsther, made adverse comments regarding her competence. Consequently, the PGIMrefused the petitioner Board certification and decided to extend her post MD trainingby one year, in Sri Lanka.
Held:
The decision to refuse Board certification was taken on the basis of adversecomments by Dr. Davis which were unjustified, contradictory and perversewhich comments were entertained without giving the petitioner an oppor-tunity of defending herself, in breach of the audi alteram partem rule. Hencethe decision of the PGIM was fatally flawed. The relevant regulations didnot permit the substitution of a further period of local training.
The PGIM had failed to send the petitioner for training to an approvedcentre within the meaning of regulation 5 (3) (f>).
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The PGIM and its Board of Management and the Board of Study inAnaesthesiology infringed the petitioner's right under Article 12 (1) of theConstitution.
Case referred to:
1. Allinson v. General Council of Medical Education (1894) 1 QB 750,760-761.
APPLICATION for relief for infringement of fundamental rights.
N. B. D. S. Wijesekera for the petitioner.
K. Sripavan DSG for the respondents.
Cur. adv. vult.
September 25, 1998.
FERNANDO, J.
The petitioner alleges that in violation of her fundamental right underArticle 12 (1) the Postgraduate Institute of Medicine (PGIM) – theBoard of Management of which consisted of the 4th respondent, itsChairman, and the 5th to 17th respondents – had refused her "Boardcertification” as a Consultant Anaesthetist. She asks for an orderquashing that decision, for compensation in a sum of five millionrupees, and for a declaration that the PGIM should grant her such"Board certification".
Mr. Sripavan, DSG, appearing for the respondents, drew ourattention to the Postgraduate Institute of Medicine Ordinance,No. 1 of 1980, (published in Gazette No. 83/7 of 10.4.80) made bythe University Grants Commission (UGC) under section 140 read withsection 18 of the Universities Act, No. 16 of 1978. The PGIM wasestablished by section 2 of that Ordinance; by section 4 the PGIMwas attached to the University of Colombo; section 5 gave the PGIMpower to provide postgraduate instruction, training and research insuch specialities in medicine as may be approved by the UGC uponthe-recommendation of the PGIM and the University, and to conductpostgraduate examinations for the purpose of ascertaining the personswho have acquired proficiency in such specialities; section 13 requiredthe PGIM to establish Boards of Study for various specialities inmedicine, including of Anaesthesiology; and section 15 (2) empoweredeach Board of Study to draft, and to submit to the Board of Man-
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agement of the PGIM, regulations relating to courses of study andexamination in the relevant speciality, and to recommend to the Boardof Management persons who having passed the prescribed exami-nations and having satisfied other prescribed conditions are eligiblefor the award of postgraduate degrees, diplomas, certificates and otheracademic distinctions in that speciality.
It is common ground that regulations had been made relating tothe training programme in Anaesthesia leading to the degree of MD(Anaesthesiology), and to Board certification as a Consultant Anaes-thetist. There is no dispute that the petitioner had satisfactorily com-pleted the MD and the clinical training programme. Regulation 5.3prescribes the other requisites for Board certification:
"Trainees who have completed the clinical training programmewithout exemptions shall –
complete a period of one year as Senior Registrar in Sri Lankain a teaching hospital approved by the Board under the supervisionof a fully-qualified Consultant and be certified by him. This periodneed not be continuous.
undergo a period of training abroad of at least one year,in a centre approved by the Board."
It is admitted that she successfully completed the period of localtraining required by regulation 5.3 (a).
There had been some delay on the part of the PGIM in sendingthe petitioner for foreign training. Although the petitioner alleged badfaith, the correspondence shows that PGIM officials did makereasonable efforts to send her abroad. There is no other evidenceof bad faith or ill-will, and I reject that allegation.
Three questions arise for determination. Was the decision of thePGIM, that the petitioner had not completed her foreign trainingsatisfactorily, reached in violation of her rights under Article 12 (1)?If such foreign training had not been satisfactorily completed, was thePGIM entitled to substitute a further period of local training? Had thePGIM sent her for training at a centre which had been approved interms of regulation 5.3 (£>)?
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1. Satisfactory Completion of Foreign Training
The petitioner was sent to the Sir Charles Gairdner Hospital, WesternAustralia (the Hospital), for training under Dr. N. J. Davis, fromFebruary to December, 1995. In December, 1995, she received thefollowing certificate from Dr. Davis:
“Dr. Y. de S. Jayawickrema was [s/cj completed 12 months inthe Department of Anaesthesia as a postgraduate trainee. She hasbeen in a hands-on position and has had wide clinical experienceduring that time. She has been conscientious and diligent with herwork.
She also received a certificate dated 27.12.95 from Dr. Cuerden,a visiting Consultant:
"I have known Dr. Jayawickrema for the year that she has spentas an overseas visitor at [the Hospital], She has performed similarduties to the other trainee Anaesthetists which include pre-operativeassessment and anaesthesia for the whole spectrum of surgeryexcept paediatrics and obstetrics. During my time working with herI have found her to be an experienced and skilled Anaesthetistwho is happy and able to work on her own. She was alwayspunctual, reliable and obliging to the other team members and tooka conscientious and workmanlike approach to her duties. I knowshe is looking forward to returning home to Sri Lanka and her familyand I wish her every success in her career there.”
The respondents do not claim that any performance appraisal,report, or other observations relating to any aspect of the petitioner'sperformance or conduct had been communicated to the petitioner,either by Dr. Davis or anyone else on behalf of the Hospital, or bythe respondents or anyone else on behalf of the PGIM, at any timeduring her training period, or after its conclusion.
On 3.1.96 the petitioner applied for Board certification, enclosingthe required certificate from the local Consultant that she had sat-isfactorily completed her local training, as well as the two certificateswhich she had received in December, 1995, from the AustralianConsultants.
SC Jayawickrema v. Prof. W. D. Lakshman, Vice Chancellor,
University of Colombo and Others (Fernando, J.)239
Thereafter, at the petitioner's request, Dr. Davis sent her, byfacsimile, yet another certificate, dated 19.3.96, addressed to theformer Director of the PGIM:
"Dr. Y. de S. Jayawickrema has asked me to confirm with youthat she has been given sufficient training to work as a ConsultantAnaesthetist in Sri Lanka. I have (previously?) written regardingher performance. She was given 12 months training under mysupervision. I believe that her training has been sufficient for herto work as a Consultant Anaesthetist in Sri Lanka and I think sheis capable of doing so."
There was considerable delay in dealing with the petitioner'sapplication. She protested, requesting that in the meantime appoint-ments of Consultants to various hospitals should be delayed until adecision was taken upon hdr application. Her trade union, the GMOA,also protested. A letter of demand was sent by an Attorney-at-lawon her behalf. Finally; by letter dated 29.8.96, the decision of the PGIMwas conveyed to her;
". . . the Board of Management has approved the recommendationof the Board of Study in Anaesthesiology that your Post MD trainingbe extended by one year in Sri Lanka. The decision of the Boardof Study submitted to the' Board of Management was made afterconsideration of all reports relating to your Post MD training."
No reason was Stated, either then or thereafter. The certificatestendered by her were not queried or doubted. She was not toldwhat reports had influenced the Board of Study and the Boardof Management in reaching that decision, and was given noopportunity whatever of explaining her position in relation to anyadverse comments in those reports.
With his affidavit the 2nd respondent tendered copies of two lettersdated 11.6.96 and 18.6.96 written by the 3rd respondent (the Chair-person of the Board of Study in Anaesthesiology) and the formerDirector Of the PGIM, respectively, to Dr. Davis. He also stated thatDr. Davis had. submitted confidential assessments dated 21.4.95,3.8.95 and 21.12.95, and had replied to the aforesaid two letters; andclaimed that these "contain very confidential information, (and) will bemade available if so required" by this Court. The petitioner respondedthat she had only been given (presumably by Dr. Davis) a copy ofthe report dated 3. 8. 95.
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At the hearing, Mr. Sripavan tendered copies of six letters writtenby Dr. Davis: four to the former Director of the PGIM, and two tothe 3rd respondent. Dr. Davis had neither marked any of these as"confidential", nor requested confidentiality for their contents. Indeed,these should have been disclosed by the PGIM to the petitioner atthe outset, and she should have been asked for her observations.We declined to allow them to be produced for perusal only by thecourt, for that would again deny the petitioner an opportunity ofcontroverting or explaining them; and in any event we would havehad to quote relevant extracts in our judgment, thereby destroyingwhatever "confidentiality" they might have had. On the other hand,if they were not produced, the impugned decision would have hadto be set aside as being one made without reasons, and unsupportedby any relevant material. Mr. Sripavan was therefore constrained toprodue them, and to disclose them to the petitioner. Indeed, if hehad not done so, we ourselves would have directed their production.
It is necessary to refer to the entire correspondence in sequence.
Dr. Davis first wrote to the former Director, PGIM, on 21.4.95:
"It is difficult to give a real assessment of progress of Dr.Jayawickrema as she has had an unfortunate start to her timehere due to not having all the paperwork required for registration.As she did not have a certificate of good standing from Sri Lankashe could not be registered until this arrived. This certainly slowedher progress as there was a limit to what she could do withoutmedical registration.
There are some real concerns about her communication skills.It is not easy to ascertain how much she understands and althoughI believe she understands English very well, it is not easy to knowif she has absorbed what has been said to her. There is thereforea reluctance to allow her too much clinical freedom at this stage.
I shall report to you on her further progress at a later date."
He wrote again on 3.8.95 to the former Director:
"Dr. Jayawickrema has now been with us for six months. Shehas worked with many different consultants in the department overa wide range of specialties. There has been concern expressedto me that communication with Dr. Jayawickrema is not easy andthis has impeded her performance. For this reason she has not
SCJayawickrema v. Prof. W. D. Lakshman, Vice Chancellor,
University of Colombo and Others (Fernando, J.)241
been placed on the night duty roster up to this stage althoughit had been my intention for her to be on the night roster. It isfelt that she needs quite close supervision yet is clearly anexperienced Anaesthetist. It is not felt she is at the stage ofindependent practice. She is very willing and does all that is askedof her."
About the same time that he gave the petitioner a favourablecertificate (already quoted), Dr. Davis submitted his formal evaluationto the former Director on 21.12.95:
"Dr. Jayawickrema has now come to the end of 12 monthswith us.
During that time she has had hands on experience and su-pervision and teaching in most branches of adult anaesthesia. Shehas during that time been keen and willing and has shown a goodlevel of knowledge.
I wrote previously that I thought that difficulties withcommunication were impeding her performance. These difficultiesstill exist. I have discussed her performance with my consultantcolleagues and there is still a lack of confidence in her ability topractice (sic) independently in this environment.
I do not believe that this is just a language thing. She doesnot seem to always be aware of what is going on around her.
I would not be in a position to say that at the end of her timehere that I would consider her at a level that she would be ableto be considered to be at consultant level for Australia.
I do not have access to old reports or assessments from earlyin her training but / would be surprised if she had really goodreports."
This was followed by Dr. Davis' letter dated 19.3.96 (alreadyquoted), stating his opinion that the petitioner's training had beensufficient for her to work as a Consultant Anaesthetist in Sri Lanka.
That was acknowledged by the 3rd respondent, by her letter dated11.6.96:
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"… in view of the previous assessment . . . the Board of Studyin Anaesthesiology was not willing to consider her Board certifi-cation as a Specialist since the practice of anaesthesia as aconsultant in Sri Lanka demands a high standard of independentpractice similar to that required in Australia.
Please be good enough to clarify your statement: "I would notconsider her at a level that she would be able to be consideredto be at consultant level in Australia." Is it felt that she was unableto fit into the Australian system or was it because of a gap inskills and competence expected of a consultant . .
His reply dated 14.6.96 to the 3rd respondent avoided a specificanswer to that question:
"I feel uncomfortable about this matter as I certainly did not meanto imply that standards were lower in Sri Lanka than we wouldexpect here. I felt that I was in a difficult position with this ladyas she is quite experienced and has been practising at senior levelin Sri Lanka, but as you know from my previous assessments shedid not seem to be able to function at a level expected of aconsultant. Her approach to patients upset a number of bothAnaesthetists and nursing staff – this was put down to "culturedifference" but I don't really believe there should be any suchdifference.
She has faxed me to get in ahead of you and stated: "Pleaseconfirm your recommendation".
I believe she needs a thorough assessment and evaluation. Iwould not be happy to recommend her as a consultant. There weremajor difficulties in routine communication which suggests to meshe needs a period of formal evaluation in your country."
Thereafter the former Director, PGIM, wrote a similar letter toDr. Davis on 18.6.96, adding:
". . . If there was a deficiency in skills and competencies inDecember, 1995, at the time of your second assessment in March,1996, were these deficiencies corrected …"
He had overlooked the fact that the petitioner had left Australiain December, 1995.
SC Jayawickrema v. Prof. IV. D. Lakshman, Vice Chancellor,
University of Colombo and Others (Fernando, J.)243
In his reply dated 21.6.96, Dr. Davis recited a whole litany ofdeficiencies:
“I received your fax yesterday. Last week I faxed a report tothe Chairman of the Board of Study in Anaesthesiology. I hopethis has been passed to you. I am sending a copy. I am not verycomfortable with the situation as this doctor did not come up tothe same standards as our trainees, or of the other trainees wehave had from overseas countries. She was rough with patients,had poor sterile techniques, poor communication skills. Thesethings did improve during her time here but the staff of thedepartment all found her difficult to teach. She just did not comeup to what we expect of a consultant. I certainly tried to give herthe benefit of any doubt regarding cultural difficulties but there werequite a lot of problems of a public relations nature. She just didnot seem to listen to what was said."
Was that the same person of whom he had said in March: Hertraining has been sufficient for her to work as a Consultant Anaesthetistin Sri Lanka? '
Finally, after the PGIM decision of 29.8.96 which referred to reportson the petitioner's training, Dr. Davis wrote to the 3rd respondent on4.9.96 when the petitioner asked for those reports:
“I have had a fax today from Dr. Y. de S. Jayawickrema askingagain for a favourable report. She says her whole career is at stake.She says the local consultants in Sri Lanka have given very goodreports.
She has sent me a copy of a report from Dr. Cuerden, whois a visiting consultant at this hospital – he works here only oneday per week and is not involved at all in department administration.
She wants a good report and wants a copy, and a copy ofother reports.
I have again discussed her with senior consultants in the de-partment and I cannot provide a favourable assessment. She isputting me in a difficult position – she says the letter must stateshe has completed her training satisfactorily. I
I want nothing more to do with this lady – do you have asuggestion?"
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I must now analyse this correspondence, according to its severalstages.
The only significant shortcomings which Dr. Davis noted during thepetitioner’s training related to about communication difficulties and theneed for “quite close supervision" which precluded "independentpractice". On the other hand, he acknowledged that she had workedwith many different Consultants over a wide range of specialities; thatshe was "clearly an experienced Anaesthetist", and that she was "verywilling and does all that is asked of her".
At the end of her training in December, 1995, Dr. Davis gave hera certificate which mentioned no shortcomings at all, thereby neces-sarily implying that she had completed her training satisfactorily; andthat the difficulties observed earlier were no longer relevant. He notedthat she had wide clinical experience, and was conscientious anddiligent. However, at the same time but behind her back, he gavethe PGIM a different version. Not only did he refer again to theshortcomings initially observed, but he concluded, in a ratherconvoluted fashion, that he "would not be in a position to say thatat the end of her time here that (he) would consider her at a levelthat she would be able to be considered to be at Consultant levelfor Australia". Her training period was over. What was required washis assessment at that point of time, and not at some stage in thefuture; and if he really did not consider her fit to be a Consultant,why could he not say so directly, jn so many words. And in viewof what transpired later, it is significant that he mentioned no othershortcomings, let alone details.
The third stage was when, in March, 1996, he had to try to resolvethe glaring contradiction between the two certificates he had givenin December: he said – without any reservation – that her traininghad been sufficient for her to work as a Consultant Anaesthetist inSri Lanka and that she was capable of doing so. In effect, he therebyretracted his adverse evaluation.
' However, that explanation gave rise to another serious inconsist-ency, which he was asked to explain in June, 1996. In his 21.12.95evaluation he seemed to be saying that she was not fit to be aConsultant in Australia, but in March, 1996, he confirmed that shewas fit to be one in Sri Lanka. Naturally, the inevitable question arose:
SC Jayawickrema v. Prof. W. D. Lakshman, Vice Chancellor,
University of Colombo and Others (Fernando, J.)245
Were there two different standards? In obvious discomfort, he saidthat he certainly did not mean to imply that the required standardswere lower in Sri Lanka than in Australia. If so – he was pressedto explain – were the deficiencies noted in December, 1995, sufficientlyremedied by March, 1996, so that she had reached those (common)standards and was fit to be a Consultant? He could not take theeasy way out, of claiming a “cure" between December and March,because after December she was not in Australia. If he said that therehad been no significant deficiencies in December, that would havebeen an admission that his December evaluation that she was notfit to be a Consultant in Australia was false. In stages, he came out,in three successive letters, with different stories. First he merely said- and that, too, for the first time – that her “approach to patientsupset a number of both Anaesthetists and nursing staff”. That wasquite vague – what sort of “approach", and "upset" in what way? Whenasked a second time, he trotted out a string of very serious allegations:“rough with patients", "poor sterile techniques", "difficult to teach", and"quite a lot of problems of a public relations nature". Finally, inSeptember, 1996, he was confronted with Dr. Cuerden's very favour-able report: he tried to brush it aside without explanation, lamely sayingthat “he works here only one day per week". He did not claim thatDr. Cuerden's evaluation was either untrue or unreliable, and hefurnished no material which might have justified the rejection ofDr. Cuerden's evaluation by the PGIM. That evaluation could onlyhave been reconciled with Dr. Davis' final evaluation on the fancifulassumption that the petitioner's performance was quite satisfactoryfor just the one day of the week that she worked with Dr. Cuerden,and was exactly the opposite during the rest of the week. Dr. Davis'allegations that the petitioner did not come up to the same standardsas other trainees, that all found her difficult to teach, and that shejust did not seem to listen, cannot easily be squared with his previousobservations that she was keen and willing, and had shown a goodlevel of knowledge, and did all that was asked of her.
Indeed, any reasonable person would have thought that Dr. Cuerdenand Dr. Davis were referring (in the three certificates which theydisclosed to the petitioner) to a completely different trainee to the oneevaluated by Dr. Davis (in his certificates he sent the PGIM inDecember, 1995, and in June and September, 1996).
In order to decide whether or not the petitioner had satisfactorilycompleted her foreign training, there were several serious matters
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which the PGIM should have considered before acting on Dr. Davis'adverse evaluations. First, whether the allegations in the June, 1996,evaluations were quite belated, having been made for the first timeonly six months after the end of the petitioner's training; and whetherhis conclusions should have been accepted without calling for someparticulars. For example, what were the "poor sterile techniques"? Hadeven a single instance of “poor sterile techniques" been recorded,and the petitioner given a caution as well as guidance about improve-ment – both as an essential part of the trainee's instruction, and inorder to ensure that there would be no repetition likely to injure patientsand to expose the Hospital to damaging publicity and claims fordamages? Was not some evidence necessary? Second, was it safeto act on those allegations, considering that they were completelycontrary to Dr. Cuerden's certificate, which was not seriously im-pugned? Third, could any reliance be placed on Dr. Davis' evaluations,as one or more of his assessments were tainted by deliberate untruths,and/or suppression of the truth and/or shifting standards of evaluation?If the certificate he gave the petitioner in December, 1995, was true,did it not follow that all his other adverse evaluations were necessarilyincorrect? And even if that certificate could properly be ignored, yet- since he later accepted that common standards were applicableto Australia and Sri Lanka – could Dr. Davis' certificates dated21.12.95 and 19.3.96 both be true? Was not one or the othernecessarily untrue? Fourth, if in fact the petitioner had been guiltyof the serious lapses enumerated for the first time in June, 1996,how could Dr. Davis have concluded in March, 1996, that she wasfit to work as a Consultant in Sri Lanka? Did he believe people andbacteria to be antipodally different in Sri Lanka so as to makeroughness with patients aind poor sterile techniques cease to be abar to Consultant status? Finally, having regard to the serious alle-gations made against the petitioner in reports which had not beendisclosed to her, should she not have been informed of those al-legations and given an opportunity of defending herself – the moreso because of their doubtful probative value?
In relation to the last aspect, I must note Dr. Davis' comment thathe “would be suprised if (the petitioner) had really good reports" inrespect of her previous training. Obviously, he felt the need for someconfirmation of his opinion – thus betraying uncertainty about his ownevaluation. With her petition the petitioner produced reports from fiveConsultant Anaesthetists under whom she had worked in 1992 and
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1993. They indicate that the petitioner was competent and consci-entious, had a pleasant personality, and enjoyed cordial relations withthe staff. Obviously, the PGIM had failed to consider them, becausein the affidavit he filed in these proceedings, the 2nd respondentstated – incorrectly, as it turns out – that the petitioner had notsubmitted them to the Board of Management. In her counter-affidavitthe petitioner replied that these reports had been submitted – someto the Board of Management, and the rest to the Board of Study -in 1993 and 1994. She can hardly be blamed for not reminding thePGIM in 1996, as she was never told the basis on which her ap-plication was being considered.
I hold that the decision of the PGIM to refuse the petitioner Boardcertification, on the basis that she had not satisfactorily completedher foreign training, was fatally flawed. In regard to the substance,or the merits, of that decision, it was based entirely on Dr. Davis'adverse evaluations, and those were so riddled with contradictionsand inconsistencies that it was unreasonable and perverse to act onthem. Indeed, the PGIM should have scrutinized the manner in whichDr. Davis supervised the petitioner's training, and issued hopelesslycontradictory reports about her performance to the PGIM, which wasthe professional body having the power to grant her Consultant status.He had made statements which were either defamatory of the pe-titioner or, at best, so wildly inconsistent as to betray a total lack ofconcern for the truth; and he made them about a fellow professional,to a professional body, knowing that they would influence that bodyin respect of a matter which vitally affected her professional standingand advancement. Even though he gained no financial benefit, thePGIM ought to have considered whether those evaluations weretainted by professional misconduct:
"If it is shewn that a medical man, in the pursuit of his profession,has done something with regard to it which would be resonablyregarded as disgraceful dr dishonourable by his professional breth-ren of good repute and competency, then it is open to the GeneralMedical Council to hold that he has been guilty of "infamousconduct in a professional respect. . .“
There may be some acts which, although they would not beinfamous in any other person, yet if they are done by a medicalman in relation to his profession, that is, with regard either to his
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patients or to his professional brethren, may be fairly considered"infamous conduct in a professional respect. .
It seems to me that it may be fairly said that the plaintiff hasendeavoured to defame his brother practitioners, and by thatdefamation to induce suffering people to avoid going to them foradvice, and to come to himself, in order that he may obtain theremuneration or fees which otherwise he would not obtain . .
(Allinson v. General Council of Medical Education, (1894) 1 QB750, 760-761).
As for the decision-making process, in a matter of vital importanceto the petitioner in her professional capacity, the PGIM deprived herof the protection of the audi alteram partem rule.
The decision refusing to grant the petitioner Board certification musttherefore be quashed. But that does not imply that the petitioner didcomplete her foreign training satisfactorily, nor is it the function of thisCourt to decide that matter, and to substitute its own view, on aquestion of fact relating to professional competence, for that of thePGIM. I therefore refuse her prayer for a declaration that the PGIMshould grant her Board certification.
The petitioner has been unjustly denied Board certification. Whatsteps should now be taken to remedy that? Should the PGIM be askedto reconsider her application dated 3.1.96? Should the PGIM bedirected to provide another period of foreign training? Or a period oflocal training instead?
2. Substitution of a Further Period of Local Training
The impugned decision purported to extend the petitioner's post,MD training by one year in Sri Lanka. Regulation 5.3 (b) requiresone year's foreign training, and does not provide for any exemptions,exceptions or alternatives. Mr. Sripavan referred to the high cost ofproviding foreign training, and the difficulty of securing places for suchtraining, and submitted that in several -previous instances, where atrainee had failed to complete foreign training satisfactorily the PGIMhad required an additional period of local training in lieu.
SC Jayawickrema v. Prof. W. D. Lakshman, Vice Chancellor,
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The regulations deal with postgraduate education and trainingleading to Board certification. They prescribe foreign training as a pre-condition to Board certification. They have been made by a profes-sional body which, it must be assumed, was not only competent butacted after due deliberation – in order to ensure that Consultants havethe necessary knowledge, skills, experience and training. If all thatcould have been provided through local training, then the requirementof foreign training would have been superfluous and unreasonable:one which placed an unnecessary barrier on Board certification, therebynot only increasing the cost to the nation of producing Consultantsbut also unduly curtailing the number of Consultants at a time whenthe undoubted need was for more. That is nobody's case. Indeed,if the PGIM was at any time of the confirmed opinion that there arecircumstances in which local training could appropriately be substi-tuted, it was duty-bound to amend the regulations accordingly. As ofnow, this court must proceed on the basis that the purpose ofregulation 5.3 (b) was to enable aspiring Consultants to acquire someknowledge, skill or experience which local training could not provide;as the 3rd respondent said, “to gain knowledge of Anaesthesia in othercountries and to be trained in fields which are not so well-developedin Sri Lanka".
It is true that the regulations can be amended. But even theauthority which made the regulations is bound by them, unless anduntil they are duly amended; and disregarding its own regulations isnot a method by which that authority can amend them. The conclusionis that the PGIM, and the Board of Management and the Board ofStudy, could not dispense with foreign training – either ab initio orafter a period of foreign training which was unsatisfactory in anymaterial respect. I
I realise that there may be borderline cases in which foreign trainingis completed satisfactorily but for some trifling shortcoming. I do nothave to consider whether an exception could be made in such a case.Here, the PGIM accepted Dr. Davis' adverse evaluations, and con-tinued to reiterate such acceptance, without reservation, even in thepleadings filed in this case. If Dr. Davis is to be believed, it wouldbe quite unsafe to grant the petitioner Board certification; he allegedextremely serious shortcomings, particulars of which he did not revealeven to the PGIM; and it was not a mere matter of accents, or idiom,or communication difficulties. If the PGIM believed Dr. Davis, she had
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not benefited from her foreign training, and needed another full periodof foreign training. If the PGIM did not believe Dr. Davis, the availablematerial about her performance did not justify the refusal of Boardcertification, and the question of any further local training would nothave arisen.
Any past practice by the PGIM of substituting local training forforeign cannot result in amending regulation 5.3 (b). On a matter ofsuch importance – to patients, the profession and the nation – nothingshort of an express amendment made after due consideration willsuffice. Nothing in this judgment should be taken to stand in the wayof any such amendment being made, and future applications for Boardcertification being considered thereunder.
I hold that, on the facts of this case, the regulations, as they nowstand, do not permit the substitution of local training.
3. Was the Hospital an Approved Centre?
It is necessary now to turn to another issue which surfaced onlyduring the oral arguments. Regulation 5.3 requires training at placesapproved by the Board. Thus in the case of local training, it mustbe "in a teaching hospital approved by the Board”; and in the caseof foreign training, "in a centre approved by the Board". On the firstday of hearing we asked Mr. Sripavan whether the Sir CharlesGairdner Hospital was "a centre approved by the Board". Even onthe next day he was unable to produce any Board decision expresslyor impliedly approving that hospital in terms of regulation 5.3 (b) ;nor could he show that any trainee in Anaesthesiology had previouslybeen sent to that hospital. He argued, however, that the decision tosend the petitioner to that hospital made it an approved centre; thatthe practice was not to approve hospitals, but to approve of traineesbeing placed in various hospitals; and that in any event the petitionerhad acquiesced in being sent to that hospital, and could not now raisean issue of irregularity in that respect.
The relevant correspondence is scanty. By letter dated 12.10.94,Prof Walters of the Department of Pathology of the hospital, informedthe former Director, PGIM, that Dr. Davis had agreed to offer the
SC Jayawickrema v. Prof. IV. D. Lakshman, Vice Chancellor,
University of Colombo and Others (Fernando, J.)251
petitioner a post. On 19.10.94 the former Director conveyed that offerto her, adding that “in the event you are unable to accept the offer. . . you will have to. undergo the consequences of your Boardcertification being delayed". On 24.10.94 she accepted. All that tookplace before the Board of Study considered the matter. At a meetingheld on 4.11.94 the Board of Study dealt with the matter only byrecording under "Correspondence":
“(a) Letter from Dr. Walters offering (tfie petitioner) a trainingpost for a year …
Letter from (the petitioner) accepting the above post."
There was no decision by the Board of Study to approve thehospital. Indeed, before the question of the petitioner's placementreached the Board of Study, the former Director had pre-emptedany issue of approval of the hospital or her placement. The placementhad already been offered to the petitioner, and her acceptance obtained.What remained for the Board was a formality; to give covering approvalfor that placement. The Board did nothing more than, to note thecorrespondence, without even going through the motions of approvingthe hospital or the placement.
What is more important is that it was the Board of Managementwhich alone had the power under regulations 5.3 (b) to approve thehospital. The respondents did not produce any Board paper or minuteof the Board of Management relevant to such approval, or referringto the petitioner's placement. In my view, regulation 5.3 (b) requiresthe board actively to consider the suitability of the place to whichthe trainee is being sent, by reference to factors such as the natureof the training, and the arrangements for its supervision and evalu-ation. The purpose of foreign training, to which I have already referred,would not be achieved if trainees are simply sent to just any hospitalanywhere abroad, merely because a place happens to be availablethere, without considering those factors. Indeed, the present disputewould not have arisen if proper arrangements had been made inrespect of continuing supervision, evaluation and guidance.
It is clear that the petitioner was given no opportunity of statingher views as to the country or the hospital at which she was to be
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(1998) 2 Sri LR.
trained. Approval being a matter for the PGIM, she was entitled toassume that the appropriate Board would take all necessary stepsin respect of approval; she was never told what decisions the Boardtook in that respect. As far as she was concerned, there was virtuallya threat that if she did not accept that placement, her foreign trainingand Board certification would be further delayed. No question ofacquiescence by her arises.
I therefore hold that the PGIM has failed to send the petitionerfor training to an approved centre within the meaning of regulation5.3 (£>). In view of that finding, it would be futile to direct the PGIMto consider the petitioner's application for Board certification afreshin terms of the regulations as they now stand.
Ordero
i
I grant the petitioner a declaration that the PGIM, and its Boardof Management and the Board of Study in Anaesthesiology infringedher fundamental right under Article 12 (1). I direct the PGI^I, at itsexpense, to send the petitioner for foreign training, in terms of regu-lation 5.3 (b), commencing not later than February, 1999 (with fullpay or upon the payment of the equivalent amount). Considerabledelay has been caused to the petitioner in her efforts to obtain Boardcertification, and the professional recognition and financial rewards itbrings. I therefore direct the PGIM to pay her on or before 16.11.98a sum o'f Rs. 400,000 as compensation and a sum of Rs. 15,000as costs.
WADUGODAPITIYA, J. – I agree.
GUNASEKERA, J. – I agree.
Relief granted.