Cuban doc­tor loses court bat­tle to prac­tice here

-af­ter CCJ dismisses ap­peal over dis­hon­est claims

Stabroek News Sunday - - FRONT PAGE - By Femi Har­ris

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.

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 “with­out­no­tice” 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.

Sun Apr 08 2018 10:05 11:35hrs Mon Apr 09 2018 11:35 13:05hrs The open­ing lasts for 1 1/2 hours

Dr Jose Ocampo Trueba

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