Dr. Gauri Shirodkar v The Bahamas Medical Council
| Jurisdiction | Bahamas |
| Judge | Klein, J. |
| Judgment Date | 25 March 2022 |
| Court | Supreme Court (Bahamas) |
| Docket Number | Public Law Division |
In the Matter of an application by Dr. Gauri Shirodkar for Judicial Review.
and
In the Matter of the Decision of the Respondent made and dated the 30 th day of December A.D. 2020 that: “The Bahamas Medical Council has reviewed your application for registration in Radiology. We regret to inform that your application was denied. The Council is unable to verify your specialist qualification in Radiology.” ( the Decision)
and
In the Matter of the Medical Act 2014 ( the Act).
The Hon. Mr. Justice Loren Klein
Public Law Division
PUB/jrv/00003
IN THE SUPREME COURT
Judicial review — Challenge to refusal to register and license applicant as a specialist in radiology — Medical Act 2014 — Bahamas Medical Council — Application for Judicial Review — Principles — Illegality — Irrationality — Procedural impropriety — Reasons — Duty to give reasons in administrative decision-making — Damages — Availability in judicial review proceedings — Need to allege a cause of action at common law — Bad faith and malice — Breach of statutory duty — Constitutional claims — Discriminatory treatment — Exemplary and aggravated damages — Vindicatory damages
Order 53, R.S.C. 1978 — Practice and Procedure — Alternative remedies — Affidavit evidence — Ex post facto evidence — Damages — Pleadings — Content of Statement — Need to set out claims in Statement with particularity — Ord. 18, r. 12, R.S.C.
Mr. Kahlil Parker, Ms. Roberta Quant for the Applicant
Mr. Raynard Rigby, Ms. Asha Lewis for the Respondent
The applicant, Gauri Shirodkar, is a qualified medical doctor and radiologist. She was registered and licensed by the respondent, the Bahamas Medical Council (“the Council”), as a medical practitioner and employed by the Public Hospitals Authority (“PHA”) for nearly a decade between December 2010 and December 2019 as a “radiology registrar” at the Princess Margaret Hospital.
In June 2020, with a view to transitioning to a private medical facility, Dr. Shirodkar applied to be licensed and registered by the Council as a specialist in radiology, in accordance with the Medical Act 2014 (“the Act”). Her hopes were dashed in three terse lines in a 30 December 2020 letter from the Council:
“The Bahamas Medical Council has reviewed your application for specialist registration in Radiology. We regret to inform that your application was denied. The Council was unable to verify your specialist qualification in Radiology”.
Somewhat taken aback by this decision, she again wrote to the Council to try to persuade them that she met the statutory qualifications to be registered as a radiology specialist and to reconsider their position. The Council reconsidered but did not relent. In an equally short and cryptic letter dated 13 January 2021 it reiterated that it was “… unable to verify your specialist qualifications in Radiology.”
This led to the applicant, on 4 February 2021, applying for leave to judicially review the decision. I granted leave on 18 March 2021 and the Originating Notice of Motion (“NOM”) commencing the application was filed that very day. Following a directions hearing on 8 June 2021, the parties appeared before the court for the hearing of the substantive challenge on 2 September 2021. That hearing did not come on, due to commitments by the parties to attempt to resolve the claim, and the matter was subsequently adjourned on several occasions to allow discussions to take place. The efforts to resolve the matter looked very promising at one point but eventually unravelled. In the end, the parties agreed for the court to consider the application partly on the oral submissions already made during the various appearances and on the written submissions.
Unemployed in the meantime, Dr. Shirodkar made the difficult decision to leave her husband (who is also a medical doctor and radiologist working in The Bahamas) and return half a world away to the United Kingdom with her young daughter to seek employment. Ironically, she found employment with the National Health Service (“NHS”) in the United Kingdom as a consultant radiologist.
The Motion commencing the judicial review seeks a wide array of declarations and orders, some 15 in all alphabetically enumerated from ‘a-o’. Quite a few of these are repetitive and they may be fairly summarized as follows:
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(i) certiorari to quash the decision;
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(ii) mandamus to direct the Council to register the applicant as a specialist in radiology in accordance with the Act;
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(iii) a declaration that the refusal to register the applicant without affording the applicant due process or without lawful justification was ultra vires and unlawful;
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(iv) a declaration that the refusal to register the applicant was irrational or ‘ Wednesbury unreasonable’;
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(v) a declaration that the decision was taken in bad faith, and/or constituted an intentional and/or malicious failure or refusal by the Council to perform its statutory duty;
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(vi) a declaration that the Council's conduct was arbitrary, discriminatory and otherwise “unconstitutional”;
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(vii) a declaration that the Council is estopped from refusing to register the applicant as a specialist in radiology; and
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(viii) damages, including aggravated, exemplary and vindicatory damages for the alleged constitutional claim.
There are also numerous grounds of challenge enumerated in the Statement. On a proper analysis, I am of the view that the main grounds may be distilled as follows: the decision was: (i) ultra vires and unlawful; (ii) irrational ( Wednesbury unreasonable); (iii) taken in bad faith; and (iv) discriminatory and unconstitutional.
One of the defining features of this application is the inordinate amount of affidavit evidence filed, much of it after the proceedings were in train. As I shall come to explain presently, this reliance on ex post facto evidence is to be discouraged in applications for judicial review. In this regard, the applicant filed five affidavits in support of her claim—her first and second affidavits (respectively filed 4 February 2021, 3 August 2021), the affidavit of Dr. Elizabeth Darville (3 August 2021) and two affidavits by her husband, Dr. Muneesh Sharma filed on her behalf after she relocated to the UK (9 November 2021 and 18 March 2022). The respondent relied on four affidavits by Dr. Merciline Dahl-Regis, the Registrar of the respondent Council (filed the 9 July 2021, 26 August 2021, 30 August 2021 and 11 March 2022).
As stated, the governing Act is the Medical Act 2014. It is a revising Act, which repealed the 1974 Medical Act. Its main objectives are to provide for the regulation of the medical practice in The Bahamas, the registration and licensing of medical practitioners, and disciplinary control over medical practitioners. The latter two functions are carried out through the Council, which is the professional body established under s. 3 of the 1974 Act and continued by s. 4 of the Act. Atop the various functions set out at s. 6 is the responsibility to “(a) register and license persons who satisfy the requirements under this Act…”.
Part IV of the Act deals with “Registration and Licensing”. The main section relevant to these proceedings is s. 26 (“ Specialties and registration of specialists”), along with the Third Schedule, which sets out the “ relevant post-graduate training and practice” required in relation to each specialty for registration. I will reproduce the relevant portions below. It will also be necessary to refer to other sections of the Act for the discussion of various issues, and the appropriate statutory reference will be made at that point.
Section 26 provides as follows:
“26. Specialties and registration of specialists.
(1) For the purposes of this Act, the Council recognizes –
(a) as specialties, the areas of medical practice as specified in the Third Schedule; and
(b) in relation to each specialty—
(i) the institution or body whose certification shall be accepted as proof of qualification; and
(ii) the minimum periods of relevant post-graduate training and practice required as specified in the Third Schedule.
(2) A medical practitioner shall be eligible to be registered as a specialist in the specialist register where the medical practitioner satisfies the Council that he has completed the required tuition and training in a specialty, and has obtained the relevant qualification from an institution or body recognized by the Council.
(3) An application for registration as a specialist shall be made to the Council in Form A in the Second Schedule.
(4) Where the Council receives an application referred to under subsection (3), and is satisfied that an applicant is qualified to be registered as a specialist, the Council shall, upon the applicant making payment of the fee specified in the Seventh Schedule, grant to the applicant a certificate of registration as set out in Form C in the Second Schedule.
(5) The Council shall register, in a register to be called the specialist register, a medical practitioner who possesses the qualification relating to a specialty specified in the Third Schedule.
(6) The specialist register shall indicate the specialty that each specialist's name is registered.
(7) The Council shall require a medical practitioner who desires to be registered as a specialist, pursuant to subsection (5) and section 27(1), to submit to a review by the Assessment Committee.
(8) Where a medical practitioner relies on qualification that is not granted by an institution set out in the Third Schedule, the Council may confirm that the qualification sought to be relied on is of equivalent standard as the qualification set out in the Third Schedule.
(9) A medical...
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