Dear Editor,
I have had an opportunity to read and study the decision of the Caribbean Court of Justice (CCJ) dated 5th July 2016 in the matter The Medical Council of Guyana appellant and Dr Rama Sahadeo Respondent.
Generally speaking, all decisions of the court are important for obvious reasons, but this particular decision raises some serious questions about the court and, in my opinion, they need to be discussed.
The first thing that strikes the reader about this case is that it has its origin in a complaint made in 1976 and therefore one can safely say that it took the ‘system’ 40 years to arrive at a final decision. Now that alone is truly amazing.
An equally amazing fact is that the first decision of the council to apply sanctions was made in 1998, about 18 years ago, and Dr Sahadeo first challenged this decision in 2003, thirteen years ago. This matter has wended its way through the courts for 13 straight years before the final judgment was handed down. Absolutely amazing!
Before we go any further, this is surely sufficient proof that the ‘system’ not only is broken in the sense that justice delayed is justice denied, but it is also an extremely costly exercise to pursue and one needs to be able to estimate one’s chances of being alive before embarking on this journey. Any doubts as to physical survival and financial stamina would act as a strong deterrent in pursuing justice in this ‘system’. Most persons would like to be alive when the final decision is handed down. But back to the judgment itself.
In 2003 Dr Sahadeo had challenged his suspension by the Medical Council from practising as a doctor “pending his appearance before the Council to answer allegations made against him”. Complaints were brought to the attention of the council in 1997. This suspension was in October 1998.
In 2011 the High Court ruled that the suspension was bad in law as ultra vires the council’s powers, but his claim for damages was dismissed. Dr Sahadeo filed an appeal for damages and against the decision of the High Court ordering the council to proceed to hear and determine the allegations made. The Guyana Court of Appeal remitted the claim for damages to the High Court for assessment and overruled the order for the hearing of the allegations.
The Medical Council then appealed the decision of the Guyana Court of Appeal to the Caribbean Court of Justice, maintaining their position that the suspension was valid from the onset and no damages were justified. The CCJ ruled that there was no valid suspension under Section 7 of the Medical Practitioners Act which deals with the powers of the council to take disciplinary action against practitioners and even left the “Complex issue of implied powers” of temporary suspension to “fuller argument in an appropriate subsequent case” (paragraph 32 of judgment). The court stated that in the particular circumstances “it is clear that it does not matter whether his purported temporary suspension was valid or invalid”.
I thought that this was what the appeal was all about and therefore whether damages should be awarded, depending on the determination of that issue. But the judges had other ideas. They found that under Section 5 (5) of the Act, once Dr Sahadeo had “been continually absent from Guyana for more than three years” the Council’s Secretary was duty bound to remove his name from the Register of Medical Practitioners (paragraph 34).
The doctor was indeed continually absent from Guyana for more than three years from 1997 to 2000, but the section dealing with removal under Section 5 (5) does not deal only with absence from Guyana for more than three years. It states that “The Secretary shall, from time to time make such alterations as directed by the Council in the qualifications and addresses as necessary of medical practitioners and shall remove from the register the name of a medical practitioner who is deceased or is no longer entitled to practise medicine or surgery, or whose whereabouts are not known or who has been continually absent from Guyana for more than three years, not on training, secondment or other purpose approved by Council.”
The purpose of this commentary essentially is to address this issue.
First of all, it is not true to say, as the judges did, that “The Council’s Secretary was duty-bound to remove the doctor’s name from the Register under Section 5 (5)”. It is not so simple. It is also not true.
First of all, the council’s secretary has no “duty” or power or authority to remove any name from the register whatsoever. The secretary merely carries out the lawful directions of the council and cannot do anything on her own. The Act clearly states in Section 5 (5) “as directed by Council”.
Secondly, the mere continual absence from Guyana for more than three years is not sufficient to remove a member from the register. There are additional grounds to be satisfied for removal to take place under Section 5 (5). Besides the grounds of continuance for a period in excess of three years, the Section speaks about a “purpose approved by Council”.
There are three additional matters to be determined.
Firstly: The purpose has to be clearly established if any attempt is made to remove a practitioner from the register (under Section 5 (5)).
Secondly: The said purpose has to be approved. This is obvious and self-explanatory. Certain purposes such as training or secondment are already listed in the section as approved purposes. There may be many other purposes which can occasion a continual absence from Guyana for more than three years.
Thirdly: Whatever the purpose is, it has to be an “approved” purpose. Continual absence due to illness may be an “approved” purpose.
As previously stated, only the council could make a determination as to removal from the register, not a secretary. Therefore in order to invoke Section 5 (5) the council, not the secretary, is duty bound to consider all the aforementioned four items in this section namely, the length of time, whether it was continual, what was the purpose and whether it was an approved one.
For all of this to be properly determined a hearing would be necessary and obviously such a hearing would have to be carried out by the full council. This is a requirement of the law as written and no secretary could lawfully do all this.
But even if such a hearing for removal under Section 5 (5) was possible in year 2000, that is after three years of absence from Guyana, the council could not have done it for the simple reason that they had already removed the member under Section 17 in 1998, the validity of which was the subject matter of the litigation together, of course, with the question of damages which in normal circumstances would have logically and properly flowed if the court had restricted itself to this issue and had ruled that the suspension/removal was invalid.
In an odd sequence of events, the court did rule that “it is clear that [there] was no valid suspension made under section 17 (3) of the Act,” etc (paragraph 20), and further in paragraph 23 “The Council could not validly suspend him from practice pursuant to section 17 (3) of the Act”.
But having thus ruled, it then imported into its deliberations the question of removal from absence from Guyana under Section 5 (5), a matter that had not been adjudicated in the courts below.
This is an extremely unusual situation and is the essential subject of this letter. It is not to defend the respondent. The doctor was represented by eminent counsel for over 18 years. Also he is a person whom I have known for many years. But the whole notion of some secretary being duty-bound to remove a practitioner from the register is so preposterous that the judgment is a clear candidate for analysis and more so since this is a brand new element being adjudicated.
Having stumbled upon what I call here the ‘3 yr absence’ rule, the court collectively not only incomprehensibly introduced it, but applied it incongruously to strike down any possibility of award of damages. In any normal situation an award of damages would have followed the court’s ruling on the invalidity of the 1998 suspension/removal, which they did.
In order to overcome this challenge, it was necessary to find shelter in the ‘3 yr’ rule, which was never adjudicated before and for which in any event, a hearing would have been required by council to pronounce fairly on the various elements of the 3 yr rule.
This ruling deserves further analysis and commentary due to its palpable oddity, contradictoriness and departure from known principles. Sadly, it stands as settled law but it unsettles the intellect.
It is also unsettling for the public to learn that a matter can take 40 years after first being raised.
This broken so called justice system needs to be fixed.
Yours faithfully,
Ramon Gaskin
