Kingsley Chin v Andrews Memorial Hospital Ltd
| Jurisdiction | Jamaica |
| Judge | McDonald-Bishop JA,Simmons JA,Brown JA |
| Judgment Date | 29 July 2022 |
| Neutral Citation | JM 2022 CA 81 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO COA2021CV00020 |
| Court | Court of Appeal (Jamaica) |
| Year | 2022 |
[2022] JMCA Civ 26
THE HON Mrs Justice McDonald-Bishop JA
THE HON Miss Justice Simmons JA
THE HON Mr Justice Brown JA (AG)
SUPREME COURT CIVIL APPEAL NO COA2021CV00020
IN THE COURT OF APPEAL
Written submissions filed by NEA| LEX for the appellant
Written submissions filed by Myers Fletcher and Gordon
(Considered on paper pursuant to rule 1.7(2)(i) of the Court of Appeal Rules)
I have read, in draft, the comprehensive judgment of my learned brother, Brown JA (Ag). I agree with his reasoning and conclusion and have nothing useful to add.
I have read the draft judgment of my brother Brown JA (Ag) and agree with his reasoning and conclusion. There is nothing that I wish to add.
Brown JA (AG)
This is an appeal against the order of Y Brown J (‘the learned judge’), made on 29 October 2020, refusing the appellant's application for leave to apply for judicial review. At the time of making the order, the learned judge also refused the appellant leave to appeal and awarded costs to the respondent, Andrews Memorial Hospital Limited (‘AMH’), to be taxed if not agreed. Leave having been refused in the court below, as is provided for by the Court of Appeal Rules (‘CAR’), the appellant made an application for and was granted, leave to appeal the learned judge's order by this court on 1 March 2021.
The background facts are taken from the affidavits filed by the parties in the court below. AMH is a company limited by guarantee without share capital. AMH carries on the business of a private hospital. According to its articles of incorporation, AMH's objectives include attending to the needs of humanity, alleviating human sickness and suffering and attending to the needs of the sick and suffering members of society. The media through which AMH seeks to realise its objectives are the provision of a hospital, hospice, medical and nursing services, various “ethical drugs”, medical doctors, nurses, technicians and other medical personnel. In addition to its articles of incorporation, AMH is governed by its bylaws. Consequently, it is the appellant's belief that AMH is a “functionary public authority”, the core business and activity of which are matters of public interest and concern.
The appellant is an orthopaedic spine surgeon. He submitted his credentials to the board of AMH to be granted clinical privileges to admit and treat patients at its hospital. By letter dated 22 October 2015, under the hand of its President or Chief Executive Officer (‘CEO’), the board of AMH advised the appellant that he had been granted admitting privileges from 23 October 2015. The maintenance of the admitting privileges was predicated on the annualized fulfilment of two conditions: submission of his (a) current medical registration certificate; and (b) malpractice/indemnity insurance certificate. That letter also made completing each patient's discharge summary, at the time of discharge, a part of maintaining admitting privileges at AMH. There is a gap between this letter and when the appellant said he submitted his credentials and complied with the conditions.
According to the appellant, it was in or around April 2017, that he submitted his credentials to AMH for clinical privileges, which were granted conditionally. Having complied with the conditions, his clinical privileges were renewed in January 2018, in accordance with AMH's bylaws. Under the arrangement between the appellant and AMH, patients admitted and treated by the appellant made payments directly to the appellant. AMH, in turn, billed the appellant for the corresponding use of its facility.
From the appellant's viewpoint, the arrangement was without problems until November 2018. By letter dated 29 November 2018, AMH informed the appellant that he was being placed on 90 days' suspension, retrospectively, commencing on 18 November 2018, pending investigations of matters “deemed extremely serious”. During the period of the suspension, all the appellant's practicing rights at AMH were revoked. He was also specifically debarred from admitting patients or scheduling surgical procedures of any description. The letter, exhibited to the appellant's affidavit, was under the hand of AMH's then President or CEO and set out the breaches discussed during a meeting of AMH's Medical Executive Committee (‘the Medexcom’), which met on 31 October 2018.
Two breaches were identified. Firstly, on 25 August 2018, the appellant videotaped a surgical procedure being performed by another doctor in the OR suite while the patient was on the operating table. This video, overlaid with rap music containing expletives, was allegedly later posted on the appellant's social media page. The letter alleged this to be a repeat infraction. Further, the letter recounted advice given to the appellant that any filming for educational purposes must be done with the written consent of the patient, obtained in advance of the surgery. It was also alleged that AMH was questioned by the Medical Council of Jamaica about the appellant's recording and posting of the later video. Secondly, the appellant was informed of his probable liability for allowing and/or causing physicians who had not been given practicing privileges at AMH to assist him in procedures.
The appellant asserted that AMH's power to suspend is contained in article 4.6 of its bylaws, the “relevant” parts of which were reproduced in his affidavit. The appellant referred to article 1.32 of the bylaws, which, he contended, provides for video recording of surgical procedures with the written consent of the patient. He charged that he had obtained the required written consent, which he exhibited in his affidavit. AMH's second allegation was met with a denial. The appellant countered that the reasons given by AMH for the suspension of his privileges are not matters which could result in imminent danger to the health or safety of any individual or the orderly operation of AMH.
According to the appellant, article 4.2.14.14 of AMH's bylaws lays down the circumstances in which his privileges may be revoked. This article lists impairments by alcohol, drugs or illness, while managing patients at AMH, as grounds which may result in revocation of practicing privileges. However, no such impairment was ever alleged by AMH.
The appellant charged that AMH suspended him without affording him a hearing or an opportunity to make representations on his own behalf, in breach of natural justice. Furthermore, although his period of suspension expired on 17 February 2020, AMH has failed to communicate the findings of the investigations to him and/or restore or reinstate his clinical privileges in breach of its own bylaws. The decision not to restore his clinical privileges was also “malicious, in bad faith and for an improper purpose”.
The appellant caused his attorneys-at-law to write to AMH (letter dated 18 May 2020) to assert the unlawfulness of his suspension and demand the reinstatement of his clinical privileges. The letter, exhibited in his affidavit, demanded immediate reinstatement and, in any event, within seven days, failing which, legal proceedings would be instituted. Through its attorneys-at-law (letter dated 29 June 2020), AMH expressed its unwillingness to restore the appellant's clinical privileges. Two bases were given for that decision. Firstly, the appellant was suspended under article 4.6, which gives the CEO the power or authority to suspend without a hearing. Secondly, the appellant was invited to a meeting with the CEO to discuss the suspension, but he failed to attend.
The appellant filed a notice of application for court orders on 26 August 2020. The orders sought are listed below:
“1. Leave to apply for judicial review of the decision of the Respondent refusing to restore/reinstate the Applicant's clinical privileges to admit and treat patients at the Respondent's facility, by way of:
(i) A Declaration that the Respondent's initial suspension of, and subsequent refusal to restore/reinstate, the Applicant's clinical privileges to admit and treat patients at the Respondent's facility as contained in letter dated June 29, 2020 is wrongful and a breach of contract between the Applicant and the Respondent.
(ii) An order of Certiorari to remove to this Honourable Court and quash the decision of the Respondent refusing to restore/reinstate the Applicant's clinical privileges to admit and treat patients at the Respondent's facility.
(iii) An order of Mandamus directing the Respondent to restore/reinstate the Applicant's clinical privileges to admit and treat patients at the Respondent's facility.
(iv) Damages for loss of income/revenue.
(v) Costs to be costs in the claim.” (Emphasis as in the original)
Some 18 grounds were filed in support of the application. The grounds as filed are:
“1. Rule 56.3(1) of the Civil Procedure Rules, 2002 (as amended) provides that a person wishing to apply for judicial review must first obtain leave.
2. The Applicant is an Orthopaedic Spine Surgeon.
3. The Respondent is a company limited by guarantee without share capital which carries on the business of a private hospital. The objects of the Respondent, according to its Articles of Incorporation, are, among other things, attending to the medical needs of humanity, alleviating human sickness and suffering, attending to the needs of the sick and suffering members of society.
4. The Respondent furthers and carries out its objects by providing a hospital, hospice, medical and nursing services, all kinds of ethical drugs, medical doctors, nurses, technicians and other medical persons to attend to the needs of the sick.
5. The Respondent is therefore a functionary public authority whose core...
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