By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A Supreme Court judge has branded the Medical Act as badly written in finding that Parliament intended to permit specialist physicians to challenge any refusal to register them in The Bahamas.

Justice Loren Klein, in a July 8, 2024, verdict said that to rule otherwise would lead to “an unjust and absurd result” with the judgment “of considerable significance” to doctors and physicians over their right to appeal any Bahamas Medical Council denial of their registration application.

He added that the Act, which is the principal law regulating the medical profession after being passed by Parliament in 2014, “was perhaps not drafted with the care it might have been”. This was exposed by a legal action brought against the Bahamas Medical Council by Dr Gauri Shirodkar over its February 17, 2023, refusal to register her as a radiology specialist

The Council declined her application because it was “not satisfied” she had obtained the necessary qualifications from a medical school it recognised, such as the Royal Colleges of the United Kingdom (UK) or their equivalent in The Bahamas and the Diplomate Boards of the United States of America (USA).

Dr Shirodkar had successfully challenged an earlier January 13, 2021, registration refusal via separate Judicial Review proceedings. Justice Klein, ruling on that case, found the position taken by the Bahamas Medical Council was “unlawful, as well as irrational and unreasonable”. He ruled that the application be reconsidered, triggering the present action.

For the Bahamas Medical Council argued that the Medical Act’s section 21, which deals with the ability of doctors and physicians to challenge any refusal to permit them to practice in this nation, gives no statutory right of appeal to specialists such as Dr Shirodkar.

Dr Merceline Dahl-Regis, the Government’s former chief medical officer during the COVID-19 pandemic, set out the Council’s position in an affidavit. Justice Klein noted: “It raises a narrow but important point of statutory interpretation. 

“Not only might the determination of the issue be dispositive of the appeal, but it is of considerable significance to the medical profession in connection with the appeal rights of specialists and the administration of the Act.”

Justice Klein noted that the strict language of the Medical Act’s section 21 only referred to “medical practitioners” as having the right to appeal refusal of their registration, not specialists. However, this contrasted with the Act’s section 55, which named both medical practitioners and specialists as having the right appeal any form of disciplinary action brought against them by the Bahamas Medical Council.

Suspensions, registration termination and censure are listed among the punishments that can be appealed. Dr Shirodkar, who was represented by Bahamas Bar Association head, Khalil Parker KC, argued against the “strict literal and grammatical construction” that the Medical Council placed on section 21 as denying specialists the right to appeal refusal of their registration application.

They argued that adopting the Medical Council’s approach “would have the consequence of discriminating against specialists with respect to appeal rights. Not only would this give rise to an unreasonable and unjust result, but it would offend constitutional principles against non-discrimination. Therefore, it would be the duty of the court to correct it”.

They also argued that, in giving medical practitioners appeal rights, Parliament “could not have intended to exclude” specialist doctors from this. Dr Shirodkar also asserted that this would deprive her and other specialists of appeal rights they enjoyed under the 1974 Act, which was replaced by the 2014 version.

The Bahamas Medical Council, though, stuck to its interpretation and also alleged that her appeal was “an abuse of the process of the court” and should be “estopped”. Justice Klein, though, agreed that the self-regulatory body’s position was based on an “overly-literal construction” of the Act.

While Parliament’s Hansard, and the communication by the then-minister of health, Dr Perry Gomez, did not greatly assist in determining what Parliament intended, the judge noted that it was the intent to create two separate registries - one for specialists, the other for medical practitioners.

“I accept the argument of the [Council] that the creation of two separate registers indicates that Parliament intended to differentiate between medical practitioners and specialists with respect to the registration process,” Justice Klein ruled.

“But I reject the suggestion that the creation of different registers justifies the inference that Parliament intended to treat these two categories of practitioners differently in their ability to challenge by appeal their registration and any disciplinary proceedings brought against them.

“At some sections of the Act, the draftsman does use the term ‘medical practitioner’ as inclusive of a specialist, which may only be infelicitous drafting, but this inconsistent usage does create textual ambiguity,” he added.

“Further, section 55, on which the [Council] places significant reliance, provides the same rights of appeal for a ‘medical practitioner or a specialist’ aggrieved by the decision of the Council to censure him, or suspend or terminate his registration, or remove his name from the register.”

Justice Klein said the Medical Act’s section 55 “duplicates” some of the provisions found in section 21, which showed “the Act was perhaps not drafted with the care it might have been”. And granting equal rights to medical practitioners and specialists to appeal disciplinary action “is a clear indication that the rights in section 21 were not intended to be exclusive to a medical practitioner”.

“Accepting the [Council’s] interpretation, it would mean that Parliament would have specifically provided for a person to be registered as of right as a specialist, but in the same breath denied him a right to appeal from any refusal thereunder (no matter how illegal or perverse the Council’s decision), the effect of which would be to deny him registration outright,” Justice Klein ruled.

“By the same token, it would have created a right for a specialist (once registered) to appeal against being censured, or suspended or terminated. That would be a most absurd and arbitrary outcome. His decision to be registered would be at the whim of the Council and un-appealable, but if registered he would have full rights of appeal.

“Further, the draftsman would have granted equal appellate rights to both the medical practitioner and specialist under section 55 in respect of disciplinary measures, but nonetheless would have purported to single them out for separate and unequal treatment in section 21 by denying a right of appeal to a specialist. It seems unlikely, as argued by the appellant, that section 21 was intended to cut down on the appeal rights of persons eligible for registration under the Act.”

As a result, Justice Klein ruled that section 21 was designed to provide for equal rights of appeal for medical practitioners and specialists against a Council decision to refuse them registration. “By inadvertence the draftsman failed to give effect to that intention in section 21, and Parliament would have provided for that right had the error in the Bill been noticed,” he added, dismissing the Council’s other arguments.