Enforcing rights

The single largest problem with legislation is its non-enforcement either as a result of apathy or difficulty in interpreting the provisions of the statute. Continuing from last week’s article, the Barbados Medical Council is charged in section 3 of the Medical Profession Act with overseeing the enforcement of the rights and obligations created by the act.

Specifically, the council is charged with “the regulation of standards of medical practice in the public interest” and “the investigation of professional conduct, professional performance … and the imposition of sanctions where such an imposition is warranted”.

Persons are only able to bring actions in court where their specific individual rights have been infringed (what the law refers to as having locus standi). The enforcement of public rights must be left to the Attorney General unless he gives permission to an individual to bring such a claim on behalf of the general populace.

So are there any personal/individual rights created by this act which are capable of enforcement? The rights and responsibilities set out in sections 22 and 23 of the act (discussed last week) such as only providing such treatment or prescribing such medication as is necessary are in the nature of private rights which are capable of being enforced by a patient in his personal capacity.

In the first instance, recourse is to the council itself, which in its discretion may act as an investigatory body under section 32 in relation to “any matter, however arising”, and where “such an investigation is warranted in the public interest and in the interest of maintaining the standards and dignity of the profession”.

It is also within the council’s discretion under section 32(2) to hold either a formal or an informal hearing in respect of any allegation of professional misconduct or competence. In the case of a formal hearing the council may engage the services of an attorney-at-law of not less than 15 years standing or a former member of the judiciary to assist ostensibly with the examination of witnesses and guidance on points of law and the rules of evidence in use in civil cases in the Supreme Court.

The council has no discretion per section 32(3)(b) mandates an investigation in the case of “any allegation or complaint made in writing, by a person other than a medical practitioner or specialist, respecting the matter of professional misconduct referred to in section 23”, unless in its wisdom it determines that the allegation is frivolous or vexatious.

An example of a vexatious claim would be where the new complaint is based on the same facts and circumstances and relates to the same parties as that of an earlier complaint which has been dismissed.

No specific format

There is no specific format for the drafting of the complaint which makes it unnecessary for a complainant to retain the services of an attorney-at-law (unless the council decides to adopt a legalistic approach to such issues). It should be noted that there is no express provision for the complainant to appear and be represented at the hearing of the complaint.

The complaint may be referred to any of three committees created by the act, the Complaints Committee, the Disciplinary Committee or the special review committee. Where specialist knowledge is required then a panel of such experts as are necessary may be convened instead.

While there is no time limit on the conduct of the investigation, the committee has 30 days in which to provide a report to the council, which is then required to act on the basis of the report. These time limits should be strictly enforced so as not to frustrate the citizen’s access to justice and in cases where persons’ health is at stake, time must be of the essence.

Where a matter is referred to the Disciplinary Committee arising out of an investigation, both the medical practitioner and the complainant are entitled to a copy of the decision of the council and the reasons for such decision.

Nothing in the act limits the right of any individual to sue the medical practitioner in the civil courts for negligence. This will be necessary where the patient seeks compensation, since the penalties under this act appear limited to de-registration, suspension of registration and so on. While the act makes no provision for the complainant to appeal against a decision of the council, we humbly submit that any such decision would of course be subject to judicial review by the Supreme Court of Barbados.

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