SLMC practised double standards, violated Medical Ordinance: Court of Appeal
When considering the two reports referred to above, it appears that one report has been made after inspecting SAITM and the other after inspecting FOM-KDU, but two different standards have been used, when preparing those reports,” the bench said.
The Court of Appeal has ruled that Sri Lanka Medical Council, a statutory body set up to maintain the highest professional standards and register medical practitioners, had gone out of its mandate and exercised excessive powers in rejecting the application of a private medical university graduate for registration.
The Court of Appeal bench consisting of Vijith K. Malalgoda and S. Thurairaja held that the SLMC by taking measures to regulate the South Asian Institute of Technology and Medicine Limited (SAITM) had acted in violation of the Medical Ordinance.
In this case, petitioner, Dhilmi Kasundara Malshani Suriyarachchi, who graduated with a Bachelor of Medicine and Bachelor of Surgery ( MBBS) Second Class Upper Division degree from the SAITM, complained that the SLMC, in contravention of Section 29 ( 2) of the Medical Ordinance, had turned down her application to register as a medical practitioner.
She said the SLMC Registrar had refused to entertain her application, saying that the SLMC had informed the Health Ministry that it would not register SAITM students the decision was publicised through newspaper advertisements.
Ms. Suriyarachchi in her petition pointed out that the SLMC had once advised the SAITM on how to register as a medical-degree- awarding institute. This was when SAITM wanted to establish a partnership with Niznhy Novgorod State Medical Academy in Russian Federation ( NNSMA) to award medical degrees through crossborder arrangements. The SLMC had told SAITM that it "cannot exist as the 'off-shore' campus of the NNSMA. It may, however, exist as a degree-awarding institute referred to in the Universities Act (section 25A and 70 A) and also in the Medical Ordinance."
Referring to the SLMC's newspaper advertisements based on an SLMC inquiry report that was also submitted to the Health Minister, the judges said the SLMC “was not empowered by the Medical Ordinance" to do so.
The judges in their 42- page ruling said the SLMC, when it wrote to the Health Minister informing him of its decision not to register SAITM students -- a message it publicised through the newspaper advertisements -- it was relying solely on a report compiled by prominent medical consultants appointed by the SLMC to inspect and report on academic and clinical facilities available at SAITM.
The court also noted that the investigation team appointed by SLMC to study and analyse many areas of curriculum of medical graduate studies had pointed out many deficiencies and recommended that the SLMC should not recognise graduates who had completed the SAITM study programme, until the deficiencies were recitified.
“When considering the observations made by the investigators, it is clear that those observations do not match with the final recommendation made by them,” the Court ruled.
The court was also told about another report compiled by Prof. Ranjani Gamage, a member of the SLMC investigating team, with regard to facilities of the Faculty of MedicineKotelawala Defence University ( FOM- KDU). Her two- page report had concluded that the KDU's facilities were adequate enough to produce competent military doctors.
The court observed that the investigating team which studied the KDU had reached this conclusion in only two paragraphs of their report and had said that facilities provided for training were found to be 0f a very high standard even prior to the construction of the 700-bed teaching hospital.
“When considering the two reports referred to above, it appears that one report has been made after inspecting SAITM and the other after inspecting FOM-KDU, but two different standards have been used, when preparing those reports,” the bench said.
It noted that in keeping up with Section 19 A of the Medical Ordinance, the SLMC was empowered to appoint a committee and submit its recommendations to the Minister. However, the court pointed out that the SLMC's role had to end there and any steps with regard to the SLMC inquiry panel's recommendations will have to be taken by the minister under the provisions of section 19C(2) and (3) of the said Ordinance.
“The SLMC is not empowered under the Medical Ordinance to take over the functions of the Minister and declare that the Degree Awarded by SAITM should not be recognised for the purpose of registration under the Medical Ordinance since the legislature had thought it fit to be given not to the SLMC but to the Minister,” the Court ruled.
The court ruled that the SLMC had acted outside its powers or acted ultra- vires of the provisions of the Medical Ordinance and it would like to consider whether this conduct amounts to an act of mala-fide but was reluctant to conclude.
As an immediate relief, the cour ts noted that Ms. Suriyarachchi has a legal right to provisionally register under section 29 ( 2) of the Medical Ordinance since she had fulfilled the necessary requirements under this Ordinance.
Along with the SLMC, SAITM, the Minister and the Secretary to the Ministry of Higher Education and Highways, the University Grants Commission (UGC) and the Minister of Health were named as respondents in this petition..
Romesh de Silva PC with Sugath Caldera appeared for the petitioner while Ikram Mohomed PC with Neomal Senatilake, C. Galhena, T. Marjan and Ms. Galhena represented the SLMC. Faisz Markar PC with Riad Ameen and Faiszer Musthapha appeared for SAITM.