Kingsley Chin v Andrews Memorial Hospital Ltd

• Jurisdiction: Jamaica
• Judge: Simmons JA,Brooks P,Foster-Pusey JA
• Judgment Date: 19 March 2021
• Neutral Citation: JM 2021 CA 29
• Docket Number: APPLICATION NO COA2020APP00202
• Court: Court of Appeal (Jamaica)

[2021] JMCA App 3

IN THE COURT OF APPEAL

Before:

THE HON Mr Justice Brooks P

THE HON Mrs Justice Foster-Pusey JA

THE HON Miss Justice Simmons JA

APPLICATION NO COA2020APP00202

Between

Kingsley Chin

Applicant

and

Andrews Memorial Hospital Limited

Respondent

Lemar Neale instructed by NEA | LEX for the applicant

Christopher Kelman and Stephanie Ewbank instructed by Myers Fletcher and Gordon for the respondent

Brooks P

1 On 1 March 2021, after hearing the submissions of counsel, we granted Dr Kingsley Chin leave to appeal from the decision of a judge of the Supreme Court (the learned judge), who refused his application for leave to apply for judicial review. We also granted a stay of execution of an order for costs that the learned judge made. These are our reasons for those decisions.

2 Dr Chin is an orthopaedic spine surgeon. In 2015, Andrews Memorial Hospital Limited (the hospital) granted him clinical privileges to admit and treat patients at its facility. In June 2020, after having suspended his privileges for approximately 18 months, the hospital informed him that it was unwilling to restore those privileges.

3 He applied to the Supreme Court for leave to apply for judicial review of the hospital's decision. The learned judge after hearing submissions from both parties, ruled, in part, that the hospital, being a private entity, lacking statutory authority, was not susceptible to have its decisions made the subject of judicial review. She refused Dr Chin's application, awarded costs against him and also refused leave to appeal. The learned judge, in her ruling said, in part:

“[The hospital] is a private entity lacking statutory authority and its grant to the applicant to use its facilities for medical purposes does not fall within the purview of public law, but is a matter best suited for the sphere of private law. Furthermore, the applicant's affidavit does not disclose whether the suspension of his use of the said hospital facility has affected his ability to carry out his duties to his patients which could be classified as an element of public concern.”

4 Dr Chin has renewed his application for leave to appeal for hearing by this court. He contends that the learned judge erred in ruling as she did and asks that he be allowed to appeal from the learned judge's decision.

5 The main substantive issue in this application is whether Dr Chin's proposed appeal has a real prospect of success, as he seeks to show that the learned judge was wrong in finding that the hospital, being a private entity, did not perform a public function, thereby rendering its decisions susceptible to judicial review. A secondary issue is whether the hospital's decision, in Dr Chin's case, is susceptible to judicial review.

6 The issue as to the award of costs at the leave stage is also a matter that the parties considered as important.

The submissions

7 In answer to the court, Mr Neale, representing Dr Chin, argued that the procedure of approaching this court for leave to appeal is appropriate. Learned counsel argued that since there was a hearing before the learned judge, with both parties making submissions, it would not have been appropriate to ask for the application to be renewed by a single judge in open court.

8 Mr Neale is correct on that submission. Rule 56.4 of the Civil Procedure Rules (CPR) stipulates that an application for leave to apply for judicial review, should first be considered before a judge of the Supreme Court. That judge may give leave without hearing the applicant, but is also empowered to order a hearing. The judge, on ordering a hearing, may order that notice of the hearing should be given to the respondent and to the Attorney General. In cases where there has been a hearing, and if the issue does not involve the liberty of the subject, rule 56.5(3) of the CPR prevents a renewal of such applications before a judge of the Supreme Court, in open court.

9 On the substantive issue, Mr Neale acknowledges that the learned judge, in ruling as she did, exercised a discretion open to her. He further accepts that this court will not disturb the learned judge's ruling unless it is satisfied that she made an error in her consideration of the matter. Learned counsel correctly cited, as authority for that principle, The Attorney General of Jamaica v John MacKay [2012] JMCA App 1.

10 Learned counsel submitted that the learned judge erred when she failed to take into account the public health function that the hospital performs. He argued that a number of factors demonstrate that the hospital should “properly be regarded as a functional public authority, whose core business and activities are matters of public interest and concern” (see paragraph 18 of his written submissions). Included among those factors, Mr Neale submitted are the fact that:

• a. it is registered under and regulated by the Nursing Homes Registration Act;

• b. the fees that it pays for registration are paid into the Consolidated Fund;

• c. it has a public reach, in that the care of its patients is a matter of public concern; and

• d. the government can enter into private arrangements with it, and has done so by virtue of a Memorandum of Understanding whereby it accepts an overflow of patients from the Kingston Public Hospital, emanating from the pressure on the public hospital for bed space due to the COVID-19 pandemic.

11 In support of these submissions, Mr Neale cited Karen Thames v National Irrigation Commission (unreported), Supreme Court, Jamaica, Claim No 2009 HCV 04341, judgment delivered 11 November 2011 (upheld in part, on appeal) and R (on the application of A) v Partnerships in Care Limited [2002] EWHC 529 (Admin); [2002] 1 WLR 2610.

12 Learned counsel went on to argue that if it is held that the hospital is susceptible to judicial review, it will also be necessary to decide if its decision to revoke Dr Chin's privileges may be made the subject of judicial review (see paragraph 35 of his written submissions). Mr Neale cited a number of authorities, which, he submitted, demonstrated, that whereas the refusal of an initial grant of privileges to a medical doctor, is not subject to judicial review, the withdrawal of such privileges is so subject. Among the cases cited in support of that principle is Balkissoon v Capitol Hill Hospital 558 A2d 304 (DC...