In a case dating back to 2003, the Caribbean Court of Justice yesterday dismissed a claim for damages by Dr Rama Sahadeo against the Medical Council of Guyana (MCG) over his removal from the Medical Register subsequent to allegations made against him.
The CCJ overruled a Guyana Court of Appeal edict in relation to damages but left intact its setting aside of an order of the High Court that the MCG should hold a hearing to determine sexual complaints against the doctor.
A summary of the court’s judgment said that Dr Sahadeo left Guyana on June 3, 1997 for Miami for medical treatment and only returned on June 29, 2000. After he left Guyana, the MCG received serious allegations of sexual misconduct concerning two of the doctor’s patients in 1977 and thereafter sent registered letters to the doctor at his Guyanese address.
The doctor admitted to finding out from a Council’s letter taken to Miami by his wife in December 1997 that the Council wanted him to meet with it to deal with what he said were unspecified sexual allegations against him. He replied to the letter in 1998 denying the allegations and also stated that he was out of the jurisdiction due to serious medical complications which prevented him from traveling to Guyana.
As a consequence, on October 15, 1998 the MCG suspended the doctor from medical practice until he appeared before it to answer the allegations. His name thereafter no longer appeared on the Medical Register.
In October 2000 the doctor wrote to the MCG advising that he had returned to Guyana and wished to renew his annual licence to practise medicine. The CCJ’s summary noted that under s.5(5) of the Medical Practitioners Act once a doctor has been continually absent from Guyana for three years the Council’s Secretary is duty-bound to remove the doctor from the Medical Register. This was a crucial fact in the court’s eventual ruling.
The CCJ summary said that the MCG replied to the doctor in November 2000 that he had been suspended and his annual licence application could not be heard until his name had been restored to the Register. The doctor responded by letter of December 18, 2000 merely saying he would be grateful if the Council would advise him of the period of his suspension. He was then notified on February 1, 2001 that it was until he appeared before the Council to answer the serious allegations against him.
In June 2002 Sahadeo applied again for an annual licence to practise. Again the Council advised him that he must first deal with the allegations against him before he could be restored to the Register.
Invalidly
The doctor then issued legal proceedings in July 2003, claiming his name had been invalidly removed from the Register so it should have remained on the Register, and claiming damages for loss of earnings since his return to Guyana in 2000.
At the High Court, the CCJ summary said that Justice Gregory held that the doctor had been adequately apprised of the complaints before October 1998 so as to have sufficient knowledge of the case against him. He was given opportunities to be heard but chose not to be heard. However, the judge noted that in order to impose disciplinary measures under s.17 of the MCG Act, a substantive hearing had to have been held to hear and determine whether there was sufficient evidence from the alleged victims to find the doctor to be guilty even if the Doctor had chosen not to appear. Therefore, since the Council had not convened such a hearing the suspension was not lawful. The Council was ordered by Justice Gregory to proceed with hearing the allegations against the doctor. The doctor’s claim for damages, however, was dismissed as his losses resulted from his own delinquency in his dealings with the Council.
The doctor then appealed to the Court of Appeal and the appeal was partly allowed. The Court of Appeal held that the judge had focused on the pleadings rather than the evidence, so that the Court found that the doctor had not been adequately informed of the allegations against him and had not been given a reasonable opportunity to be heard. On these grounds, the Court of Appeal ruled that the suspension was ultra vires the Act. The doctor was not at fault and was entitled to damages. This issue was remitted to the High Court for assessment and determination. The order of the High Court that the Council proceed with hearing the allegations against the doctor was also set aside.
Omission
The matter was appealed by the MCG to the CCJ. The CCJ’s summary judgment said it first considered whether the MCG’s suspension of the doctor could be justified so that his omission from the register was valid. It found that there could be no justification under s.17 of the MCG Act since the Minister’s approval had not been given (as required by s.17(3) of the Act) but also because no formal disciplinary hearing had been summoned at which the evidence of the complainants was heard and the doctor had the opportunity to challenge such evidence. The CCJ however said that the Court of Appeal had not been entitled to interfere with Justice Gregory’s fact-finding that the doctor had adequate knowledge of the allegations against him and had the opportunity to deal with them before the MCG temporarily suspended him on October 15, 1998.
“The judge had not relied upon the pleadings as evidence but, with the benefit of hearing the Doctor in the witness box, had considered the relevant correspondence between the parties and had justifiable reasons for coming to her conclusions. Interference by the Court of Appeal is only justified if a factual conclusion is one which no reasonable judge can make in that there was a demonstrable misunderstanding of relevant evidence or a failure to consider relevant evidence. No such grounds were present here”, the CCJ ruled.
It added that the courts below had focused on whether suspension could be justified under s. 17 of the Act (concerned with ‘Disciplinary Proceedings’). Before the CCJ, however, the MCG (without any consideration of case-law dealing with statutory bodies) submitted that, taking account of s.4(1)(c) of the Act requiring it to ensure maintenance of proper standards and when necessary to institute disciplinary action, a power of temporary suspension until a disciplinary hearing was held could arise as an implied power of the MCG. This power would be to suspend a doctor if the Council believed it inexpedient or dangerous or not in the public interest for a doctor to continue to practise while disciplinary proceedings were in train. The CCJ said that such a power now appears as Reg. 49(7) of the Medical Practitioners (Code of conduct and Standards of Practice) Regulations 2008.
Immaterial
“The CCJ, however, decided that the issue was immaterial as the Respondent for health reasons had chosen to be continually absent from Guyana in the period June 3, 1997 to July 29, 2000 so that he was then unable to earn fees practising as a doctor in Guyana. Furthermore, from June 3, 2000 the Council’s Secretary was duty-bound to remove his name from the Register of Medical Practitioners as per s.5(5) of the Act, so the Doctor could not complain of the lawful absence of his name from the Register. Thereafter, to obtain an annual licence, the Doctor needed to restore his name. This required him to appear before the Council to resolve the issues concerning the allegations against him. He needed, inter alia, to satisfy s.6(1)(c) of the Act which requires him to be of good character, such necessitating the clearing-up of the allegations against him in a formal hearing by the Council. The Doctor’s failure to deal with these matters caused him to be unable to practise as a doctor for the period from his return to Guyana on July 29, 2000 for which he was pursuing his claim for damages. Thus he cannot claim any such damages. Indeed, even if he had had such a claim his mere unsubstantiated assertion that his losses amounted to GY$20 million was wholly inadequate to prove such losses”, the CCJ said.
The appeal was allowed in part, upholding the lawful omission of the Doctor from the Medical Register from June 3, 2000 and the dismissal of his claim for damages for loss or earnings from July 29, 2000. However, the CCJ affirmed the decision of the Court of Appeal to set aside the order of the High Court that the MCG should hold a hearing and determine the sexual complaints against the Doctor.
Appearing for the MCG was Kamal Ramkarran while Sir Fenton Ramsahoye SC, Roopnarine Satram, Chandrapratesh Satram and Mahendra Satram appeared for Sahadeo.
