Cuban doctor loses court battle to practice here

-after CCJ dismisses appeal over dishonest claims

Cuban doctor Jose Ocampo Trueba on Friday lost his challenge to the Medical Council of Guyana refusing him full registration to practice here, after the Caribbean Court of Justice (CCJ) dismissed his appeal.

Among other things, the Trinidad-based regional court of last resort said that the doctor was outright dishonest about his claims of never being given a hearing by the Council, which evidence exposed to be a lie.

The Court described his conduct as “egregious,” while noting that this in itself would have justified his claim being struck out for abuse of the court’s process.

Dr Jose Ocampo Trueba

As a result, the CCJ ordered that the decision of acting Chief Justice Roxane George, who had previously dismissed the doctor’s claim for judicial review, be restored.

It noted in its ruling, also, that it was the Civil Procedure Rules (CPR) of 2016 which applied to Trueba’s judicial review claims and not the Crown Office Rules (COR) of 1906.

On September 14th, 2017, Trueba’s lawyers filed an urgent “without-notice” application in the High Court seeking interim orders or rules nisi of mandamus and certiorari and writs of certiorari and mandamus against the decision of the Council refusing him full registration as a medical practitioner, for which he had applied on July 17th last.

In 2013, the Council had granted him institutional registration as a medical practitioner, which permitted him to practice medicine only at the institutions stated in the licence.

The doctor, however, argued that prior to the refusal of his application for full registration, the Council did not inform him, nor was he aware of any relevant facts or circumstances which could have militated against his application being approved.

Additionally, Trueba argued that he was not given an opportunity to be heard before the Council made its decision.

His contention was that the decision was made “unlawfully, unreasonably, unfairly, in bad faith, without or in excess of jurisdiction, in breach of the rules of natural justice and was therefore null and void and of no legal effect.”

He asked the High Court for the orders nisi to be granted and that thereafter the Council should show cause why the orders should not be made absolute.

Handing down her decision three months later, Justice George refused Trueba’s without-notice application.

Citing the cases of Medical Council of Guyana v Sooknanan (2014) 85 WIR, Medical Council of Guyana v Hafiz (2010) 77 WIR and Shanmugavel v Bahamas Medical Council (2011) 80 WIR, the judge reasoned that the prerogative writ procedure cannot be employed where the legislation (in this case Section 19 of the Medical Practitioners Act) has provided an alternative mechanism to challenge a decision of the Medical Council.

The alternative, she said, was a statutory right of appeal, which Trueba should have filed.

Dr Trueba thereafter appealed to the Court of Appeal, which allowed his appeal and remitted the claim to the High Court for it to consider whether to exercise its discretion to grant judicial review.

The court decided that the Chief Justice had proceeded on the premise that the available right of appeal precluded the grant of judicial review.

The appellate court, however, held that it was not inevitable that a right of appeal barred an applicant from seeking judicial review but rather, a court should consider whether, in the particular circumstances of a given claim, judicial review was the appropriate recourse.

The Council, which had not been aware of the High Court proceedings until it received a copy of the Chief Justice’s order in November, thereafter applied to the CCJ for special leave to appeal.

It was only here that the Council got the opportunity to participate fully in the claim against it.

‘Outright dishonesty’

The Council’s Secretary stated that the doctor had been practicing in breach of the terms of his institutional registration, which permitted him to practice at a single institution.

Dr Trueba was licensed only to practice at the Davis Memorial Hospital.

The facts before the Court were that the Council had written warning letters to Dr Trueba about this breach and the immediate withdrawal of his licence if he violated the terms therein.

He was written to twice—on June 19th and July 21st, 2017 but he did not reply and had been simultaneously practicing at a different facility in breach of his registration.

According to court documents, the letter of July 21st was written four days after Dr Trueba’s application for full registration. It referred to the earlier letter and the fact that he continued to practice in breach of his licence.

It identified the provision in the applicable legislation which empowered the Council, in the event of professional misconduct or malpractice, to take disciplinary measures including suspension or revocation of licence.

The letter noted that the Council was considering the evidence and investigating whether he was guilty of professional misconduct or malpractice and required him to offer any comments he wished to make within seven days. It warned that if he did not respond, the Council would proceed to determine the issue and make findings adverse to his interest, without further input from him. The doctor did not respond.

In his affidavit responding to the Secretary’s affidavit, the Court noted that Trueba said “not a word” in response to challenge the facts stated in the Secretary’s affidavit. Resultantly, the Court said it accepted “as entirely true,” the evidence of the Council.

From that evidence, the Court said that it was highly improper, and classed the doctor’s actions as being dishonest in his concealment of those material facts from the High Court, in making his without-notice application.

“It was outright dishonesty for him to have sworn, as he did, that he had never been the subject of any disciplinary proceedings either in Guyana or Cuba or elsewhere,” the CCJ declared before describing his conduct as being “egregious.”

Through its attorney Kamal Ramkarran, the Council submitted that before the introduction of the CPR, there were no explicit Guyanese procedural provisions in the High Court rules regarding judicial review.

In the absence of written rules, a practice developed whereby the courts would grant ex parte orders nisi against a respondent.

The respondent thereafter had to show cause why the orders should not be made absolute. The Council submitted that a completely new civil procedure system now exists and Part 56 of the CPR contains detailed provisions on obtaining administrative orders.

And though there is also a Judicial Review Act which was passed by the National Assembly and assented to by the President in 2010, it has not yet been brought into force.

The Council submitted that Part 56 of the CPR must be used by litigants seeking judicial review and, therefore, every other form of practice formerly applicable, is by implication excluded.

Commencing the claim in this way means that the full spectrum of procedural tools such as discovery, case management conferences, pre-trial review and oral evidence at trial, are now available to the parties.

Ramkarran argued that even if it were possible for Trueba to commence the claim in the manner that he did, he did not satisfy the test for the granting of interim orders without notice, under the CPR.

Counsel explained that Rule 17.01(3) required that the applicant should have satisfied the court that there was good reason for not giving notice or in the case of urgency, it was not reasonably possible to give notice or that giving notice would have defeated the purpose of the application.

The Council submitted that Trueba had no good reason for not giving notice and if notice had been given, that would not have adversely affected his claim.

Ramkarran posited further, that the matter was not urgent as the doctor continued to be institutionally licensed for more than five months after the Council refused his application. His registration did not expire until January 26, 2018.

To Council’s argument that judicial review proceedings fell within part 56, Trueba’s attorneys, Ian Chang SC, Sanjeev Datadin and Robin Hunte, argued that rule 56.01(a) provides that Part 56 applies to administrative orders where the relief sought is for judicial review under the Judicial Review Act.

They therefore submitted that since the Act was not in operation, the doctor could not have brought an application under Part 56.

Ramkarran refuted this position, arguing that part 56 applies to all administrative orders including constitutional relief, certiorari and mandamus. The Council submitted that although the same orders named in the Rules can be obtained in judicial review proceedings at common law, the Rules set out the procedure for obtaining those orders, and that Trueba’s attorneys erred when they submitted that the old prerogative writ procedure still exists under the Rules.

The Court found favour with Ramkarran’s arguments, noting that it had been convinced by him. The CCJ went on to further note that its conclusion that the CPR applies generally to judicial review claims and that, by analogy, Part 56 should be applied specifically to such claims notwithstanding (and, perhaps, because) the Judicial Review Act does not apply meant Trueba’s application was properly refused by the High Court, even if that court arrived at refusal on a different basis.

Further commenting on what it said was the doctor’s dishonesty and deception in making full disclosures by which it said it was greatly disturbed, the Court said it was, however, relieved to be told by senior counsel Chang, upon inquiring of him, that he did not know of the correspondence to Trueba from the Council and that he was surprised to learn of it on reading the secretary’s affidavit.

According to the Court, the doctor’s conduct, upon being exposed even at this late stage, would have justified and indeed demanded that his claim be struck out as an abuse of the court’s process.

To this end, the CCJ referenced the case of Masood v Zahoor (Practice Note), which held that “where a claimant [was] guilty of misconduct in relation to proceedings which is so serious that it would be an affront to the court to permit him to continue to prosecute the claim, then the claim may be struck out for that reason.”

The Court reminded that “it is a criminal offence knowingly to give false evidence on oath. We would be failing in our duty as guardians of the administration of justice if we allowed Dr Ocampo’s conduct to go unremarked.”

Judiciary commended

Meanwhile, the Court said it was happy that the case proceeded with “admirable dispatch and expedition.”

Referencing the timeline of hearings, it noted that the claim was filed on September 14th, 2017, decided by the Chief Justice on October 19th, and heard by the Court of Appeal on December 21st, when it gave an oral judgment.

The application for special leave to appeal was filed on January 10th, 2018 and affidavits and written submissions were completed in time for the hearing before the CCJ on March 16th, 2018.

“It is a deep pleasure to pay tribute to the judiciary, the court administration and counsel for this remarkable achievement. This case took six months from start to finish,” the Court noted.

The CCJ has consistently had case to upbraid the local judiciary over delays.

The case was heard by Justices Adrian Saunders, Jacob Wit, David Hayton, Maureen Rajnauth-Lee and Denys Barrow.

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