Re Caribbean Ispat Ltd
| Jurisdiction | Trinidad & Tobago |
| Judge | Ventour, J. |
| Judgment Date | 29 October 2002 |
| Neutral Citation | TT 2002 HC 142 |
| Docket Number | H.C.A. No. 458 of 1998 |
| Court | High Court (Trinidad and Tobago) |
| Date | 29 October 2002 |
High Court
Ventour, J.
H.C.A. No. 458 of 1998
Mr. A. Des Vignes instructed by Mr. B. Reid for the applicant.
Mr. A. Sinanan instructed by Mr. M. George for the respondent.
Judicial review - Application for Judicial Review of the decision of the Council of the Medical Board of Trinidad and Tobago not to proceed with the enquiry into a complaint made by the applicant that a member of the Medical Board of Trinidad and Tobago had knowingly issued a false certificate respecting the state of one of the applicant employee's health, until the completion of a related police investigation — Finding that there was a clear distinction made in section 24 of the Medical Board Act Chap. 29:50 (under which applicant complained) between a case of a conviction of a member of the Board of a criminal offence and a case in which an allegation of infamous and disgraceful conduct is made and that the postponing of the enquiry until the outcome of the police investigation was not a proper exercise of the Council's discretion — Certiorari and mandamus granted.
Johnny Marcelle is an employee of the applicant, Caribbean Ispat Ltd. Whose registered office is at the ISCOTT Complex, Point Lisas, Couva. On 1st December, 1995 one Dr. Vivian Dominique a member of the Medical Board of Trinidad and Tobago issued a Medical Certificate on behalf of his patient, the said Johnny Marcelle, certifying that he (Johnny Marcelle) was suffering from gastritis and epigastric pains and that his absence from work ought to be excused on that basis. The certificate was submitted to the applicant by a relative of the employee and accepted by the applicant as a matter of course, since other medical certificates under the hand of Dr. Dominique, issued on behalf of the said employee, were submitted to the applicant in the past.
It was subsequently discovered, however, that the employee Johnny Marcelle was in police custody at the time he was certified to be ill by Dr. Dominique. As a consequence, the applicant has, through its attorneys-at-law, lodged a complaint to the Medical Board, accusing Dr. Dominique of infamous and disgraceful conduct pursuant to section 24(5)(c) of the Medical Board Act, Chap. 29:50 (The Act).
For the purpose of clarity, I think it is necessary to set out in full, the relevant provisions of the Act as they relate to the applicant's complaint.
Section 24(1) states:
- (1) Where any member of the Board or any holder of a temporary licence has either before or after he is registered or licensed under this Act been convicted either in the Commonwealth or elsewhere of an offence which, if committed in Trinidad and Tobago, would be punishable on indictment, or is guilty of infamous or disgraceful conduct in a professional respect, such practitioner shall be liable to be dealt with in the manner hereinafter provided. (2) The Council may, and upon the application of any four members of the Board shall, cause any enquiry to be made into the case of a person liable to be dealt with as in this section provided, and on proof of such conviction or of such infamous or disgraceful conduct may- (a) censure or reprimand the medical practitioner concerned; (b) suspend the medical practitioner concerned for a period not exceeding two (2) years; or (c) cause the name of such practitioner to be erased from the Register or his temporary licence to be revoked, as the case may be… (3) If the Council fords, after due enquiry, that a medical practitioner is suffering from a physical or mental condition that might, if he continues to practise, constitute a danger to the public or to a patient, the Council may suspend the member from practising until such time as in the opinion of the Council such member is able to resume practice. (4) Notwithstanding sub section (2), if the Council considers that there are reasons or circumstances which render such a course expedient, the Council may, at any time before making an order, suspend the proceedings of the enquiry for a period not exceeding 6 months, during which the medical practitioner is entitled to practise; and at the end of such period the Council may either direct that the proceedings shall be discontinued or make such order as it shall deem proper. (5) Without restricting the generality of sub sections (1) and (2) every medical practitioner shall be deemed guilty of infamous or disgraceful conduct who - (a) willfully betrays a professional confidence; (b) abandons a patient danger…; (c) knowingly gives a false certificate respecting birth, death, notice of disease, state of health, vaccination or disinfection or respecting any matter relating to life, health, or accident insurance…;”
The evidence of Dr. Kameel Mungrue, Secretary of the Medical Board, is that there is no specific procedure set out in any rules or regulation made under the Act for the investigation or enquiry into a complaint made under section 24 of the Act. As a matter of practice however, Dr. Mungrue says that when a complaint is received by the Medical Board, it is usually-referred to the Council of the Board, who will carefully consider the matter and if the Council is of the view that the complaint warrants further investigation (I take that to mean in cases where the complaint is neither frivolous nor vexatious) then the complaint is forwarded to the medical practitioner concerned, inviting a response. Dr. Mungrue further states that the Council will then consider the response and if it is found to be unsatisfactory or if for any other reason the Council considers it necessary for a further enquiry to be conducted, it will then decide how that enquiry is to be conducted and put appropriate measures in place to effect same.
Upon receipt of the applicant's complaint made by letter dated 11th June, 1996 the matter was referred to the Council at its monthly meeting held on 4th July, 1996. At that meeting the Secretary was mandated to forward the complaint to Dr. Dominique and to seek a response by 5th August, 1996. The Secretary wrote to Dr. Dominique by letter dated 19th July, 1996 and Dr. Dominique's responded by letter dated 29th July, 1996.
In his response Dr. Dominque explained to the Council that Kenneth Marcelle, the brother of Johnny Marcelle had impersonated the said Johnny Marcelle on the day in question and had procured the relevant medical certificate by deception. Kenneth Marcelle's written confession dated 30th July, 1996 was exhibited to the affidavit of Dr. Mungrue as “KM3”. Dr. Mungrue also testified that at its monthly meeting held on 7th September, 1996 the Council considered and deliberated upon the matter and came to the conclusion, that having regard to all the circumstances, it could not hold Dr. Dominique to be guilty of infamous or disgraceful conduct, as he did not “knowingly” issue a false certificate regarding the state of health of Johnny Marcelle contrary to section 24(5)(c)of the Act. The applicant was notified of the Council's decision by letter dated 28th September, 1996. See paragraph 6 of Dr. Mungrue's affidavit filed on 8th June, 1998. Dr. Mungrue was also directed by the Council to refer the matter to the police for investigation and that was done by letter dated 7th October, 1996.
On 22nd October, 1996 attorney-at-law representing the applicant wrote to the Medical Board enclosing eight (8) medical sick leave certificates issued by Dr. Dominique on behalf of Johnny Marcelle in the year 1995 indicating that two (2) of those certificates were in fact issued as late as the month of October of 1995. Attorneys for the applicant suggested to the Medical Board that Dr. Dominique knew his patient Johnny Marcelle very well and argued that this information undermined the defence put forward by Dr. Dominique that he was the victim of fraudulent impersonation.
After dispatching the letter of October 22, 1996 two (2) reminders followed (letters dated 17th December, 1996 and 20th January, 1997) before Dr. Mungrue responded by letter dated 6th May, 1997 indicating that the matter was referred to the police and that the investigation was still pending. Dr. Mungrue's evidence by affidavit (see paragraph 9 thereof) states that the additional information sent to the Board by the applicant's attorneys was considered by the Council and that the Council came to the view that there was nothing in the information upon which the Council could rescind its earlier decision. He testified further that the Council took the view that because Dr. Dominique attended on Johnny Marcelle on a number of occasions prior to 1st December, 1995 and even as late as October of that year, that such attendances did not negate the possibility that Dr. Dominique was in fact deceived on the particular day, and in the manner that he said he was.
On 11th September, 1997 attorney-at-law for the applicant wrote to the Secretary of the Medical Board noting that the Council had reconsidered its earlier decision expressed in its letter of September 28, 1996. The attorney pointed out that the fact that the police were conducting their investigation did not relieve the Council of its statutory responsibility and he called upon the Council to perform its legal duty which was to give the applicant's complaint a proper hearing. Not having had a reply, attorney-at-law again wrote to the Secretary of the Medical Board on 7th October, 1997 and the Secretary responded by letter dated 5th December, 1997 indicating that the “Council could only proceed further when evidence of fraud has been established.”
In light of the Secretary's response by letter of 5th December, 1997 the applicant took the view that the Council's decision not to make any further enquiry into its complaint and/or to postpone and/or to suspend the enquiry into the said complaint until proof of fraud has been established by the police, is...
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