IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

LE MAMEA ATA MATATUMUA
of Apia, medical practitioner.
Plaintiff

AND:

MEDICAL COUNCIL
a body constituted under the Medical Practitioners Act 1975.
Defendant

Counsel: T K Enari for Plaintiff
G Latu for Defendant

Hearing: 3 December 1999
Judgment: 24 January 2000

JUDGMENT OF SAPOLU CJ

The plaintiff in these proceedings is a registered medical practitioner employed in the Department of Health as a doctor at the Tupua Tamasese Meaole Hospital (the national hospital). The defendant is the medical council established under the Medical Practitioner Act 1975. Its membership consists of the Director General of Health as chairman, four other medical practitioners, and a barrister and solicitor of the Attorney-General’s Office.

In view of the conclusion that I have reached as to the outcome of these proceedings, I need only refer to the facts very briefly. In March 1998 complaints against the plaintiff were made to the Minister of Health and the Director General of Health alleging abusive, disgraceful, and unethical conduct by the plaintiff towards a patient and his friends. Obviously these are serious allegations against any medical practitioner if they can be proved.

On 30 April the medical council decided to appoint a subcommittee to investigate the complaints and report back to the medical council. In October 1998 the plaintiff started to inquire of the Director General of Health as to whether the medical council had made a decision on the complaints against him. Then in early February 1999 the Director General of Health referred the matter to the Public Service Commission which suspended the plaintiff. In the same month and later in April the plaintiff wrote to the Director General of Health, the secretary of the medical association and the secretary of the medical council expressing his serious concern about the delay in the medical council making a decision on the complaints against him. There was no evidence before the Court of any replies from the Director General of Health and the secretary of the medical association, but the secretary of the medical council replied in June after receiving a letter from the solicitors for the plaintiff in May inquiring about whether the medical council had completed its investigation into the complaints against the plaintiff. Then in September the Public Service Commission made its decision on the complaints against the plaintiff and reinstated him but imposed certain penalties which included a monetary fine. In October the plaintiff commenced proceedings against the medical council seeking an injunction to restrain the medical council from further dealing with the complaints against the plaintiff or alternatively an order for mandamus directing the medical council to make a decision on the basis of its investigation. Those proceedings were dismissed in my judgment which was delivered on 4 November 1999. In December following the plaintiff commenced fresh proceedings. Those are the proceedings which are the subject of this judgment.

In the present proceedings the plaintiff is seeking by way of motion from the Court an injunction to restrain the medical council from violating the plaintiffs right to a fair trial under Article 9 of the Constitution by proceeding to conduct disciplinary proceedings under section 23 of the Medical Practitioners Act 1975 on the complaints made against the plaintiff in March 1998; alternatively an order of prohibition to stop the medical council from violating the plaintiff’s constitutional right to a fair trial, or a declaration that the proposed disciplinary proceedings before the medical council will violate the plaintiff’s constitutional right to a fair trial.

As the submissions for the plaintiff unfolded, it became clear that what is being contended for the plaintiff is that if the proposed disciplinary proceedings before the medical council are to go ahead, they will be in violation of the right to a fair trial under Article 9 of the Constitution in a number of respects. The particular violations submitted by counsel for the plaintiff are: violation of the requirement for a fair hearing within a reasonable time before an independent and impartial tribunal as provided in Article 9(1), violation of the requirement that every person charged with an offence shall be presumed innocent until proved guilty according to law as provided in Article 9(3), violation of the requirement that every person charged with an offence shall be informed promptly of the accusation against him as provided in Article 9(4)(a), and violation of the requirement that no person accused of an offence shall be compelled to be a witness against himself as provided in Article 9(5).

For completeness and clarity I will set out the text of Article 9 of the Constitution in full:

“9. Right to a fair trial - (1) In the determination of his civil rights and obligations or of any charge against him for any offence, every person is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established under the law. Judgment shall be pronounced in public, but the public and representatives of news service may be excluded from all or part of the trial in the interests of morals, public order or national security, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

(2) Nothing in clause (1) shall invalidate any law by reason only that it confers upon a tribunal, Minster or other authority power to determine questions arising in the administration of any law that affect or may affect the civil rights of any person.

(3) Every person charged with an offence shall be presumed innocent until proved guilty according to law.

(4) Every person charged with an offence has the following minimum rights:

(a) To be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him:

(b) To have adequate time and facilities for the preparation of his defence:

(c) To defend himself in person or through legal assistance, to be given it free when the interests of justice so require:

(d) To examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him:

(e) To have the free assistance of an interpreter, if any doubt exists as to whether he can understand or speak the language used in court.

(f) No person accused of any offence shall be compelled to be a witness against himself.”

Because the case for the plaintiff was based solely on the alleged violations of Article 9 if the disciplinary proceedings before the medical council are to go ahead, the facts alleged for the plaintiff were also presented with Article 9 in mind. As a consequence, counsel for the respondent also concentrated in his arguments on countering the alleged violations of Article 9. So the present proceedings were contested solely on the basis of Article 9 and the right to a fair trial. However, I asked both counsel during the course of the argument whether Article 9 applies at all to disciplinary proceedings before the medical council. That is such a fundamental question, I should deal with it now.

Before this case, the occasions on which the right to a fair trial under Article 9 of the Constitution have been raised have always been in relation to proceedings before a Court of law. This is the first time Article 9 has been raised in relation to proceedings before a professional body established by statute. The applicability of Article 9 to the proposed disciplinary proceedings before the medical council is therefore a threshold issue that must be decided first. It will be a pointless exercise to embark on a consideration of the alleged violations of Article 9 if it is not applicable to disciplinary proceedings before the medical council.

In that regard, the judgment of the European Court of Human Rights in Le Compte v Belgium (1981) 4 EHR 1, E Court H R is of assistance. That case was concerned with disciplinary proceedings in Belgium against three Belgian doctors. As the facts of the case show, the system in Belgium for dealing with matters of a disciplinary nature in relation to medical practitioners consists of three adjudicating bodies. First, there are the provincial councils which deal at first instance with complaints of professional misconduct against medical practitioners. Each provincial council is made up of medical practitioners and two judges of first instance courts. Secondly, there are the appeals councils which hear appeals from disciplinary decisions of the provincial councils. Each appeals council consists of medical practitioners and ten Court of Appeal judges. Then, thirdly, there is the Court of Cassation which hears appeals on questions of law from the decisions of the appeals councils. So there may be three stages in disciplinary proceedings depending on how far the parties involved are prepared to go: a decision at first instance by a provincial council on a complaint against a medical practitioner, a decision by an appeals council on an appeal from a decision of the provincial council, and a ruling of the Court of Cassation on an appeal on a point of law from a decision of the appeals council.

What happened in that case was that complaints of professional misconduct against the three doctors were made to the provincial council which dealt with them in disciplinary proceedings. The provincial council decided to suspend the doctors’ rights to practise medicine for certain periods of time. The doctors then appealed against that decision to the appeals council which dismissed the appeals. On further appeal to the Court of Cassation they were again unsuccessful.

The doctors then filed an application to the European Court of Human Rights. One of the grounds of their application was that the disciplinary proceedings held at first instance before the provincial council contravened the right to a fair trial guaranteed under Article 6(1) of the European Convention on Human Rights, Article 6(1) of that Convention is substantially the same and almost identical in terms with Article 9(1) of the Samoan Constitution. Counsel representing the Government of Belgium in that case submitted that Article 6(1) of the Convention was not applicable to disciplinary proceedings before the provincial council and the appeals council. It was not, however, challenged that Article 6(1) is applicable to proceedings before the Court of Cassation which is a Court of law. The judgment of the majority of the Court in dealing with this particular issue states at paragraph 51:

“In fact, their case was dealt with by three bodies - the Provincial Council, the Appeals Council and Court of Cassation. The question therefore arises whether those bodies met the requirements of Article 6(1).

(a) The Court does not consider it indispensable to pursue the point as regards the Provincial Council. Whilst Article 6(1) embodies the ‘right to a court’, it nevertheless does not oblige the Contracting States to submit ‘contestations’ (disputes) over civil rights and obligations’ to a procedure conducted at each of its stages before tribunals meeting the Article’s various requirements. Demands of flexibility and efficiency, which are fully compatible with the protection of human rights, may justify the prior intervention of administrative or professional bodies…… which do not satisfy the said requirements in every respect; the legal tradition of many member States of the Council of Europe may be invoked in support of such a system. To this extent, the Court accepts that the arguments of the Government and of Mr Sperduti in his separate Opinion are correct.

(b) Once the Provincial Council had imposed on Dr Le Compte, Dr Van Leuven and Dr De Meyere a temporary ban on the exercise of their profession, they appealed to the Appeals Council, which thus had to decide the dispute over the right in question.

According to the Government, the Appeals Council nevertheless did not have to meet the conditions contained in Article 6(1) since an appeal on a point of law against its decision lay to the Court of Cassation and that court’s procedure certainly did satisfy those conditions.

The Court does not agree.”

The European Court then proceeded to consider whether the appeals council and Court of Cassation satisfied the requirements of Article 6(1) in the exercise of their respective jurisdictions.

In substance, what the European Court of Human Rights was saying is that Article 6(1) of the European Convention on Human Rights did not apply to disciplinary proceedings before the provincial council which dealt with the complaints against the doctors at first instance. At that level the legal tradition of each member State of the Council of Europe may be invoked in relation to disciplinary proceedings before administrative or professional bodies. As for the appeal proceedings before the appeals council, the European Court ruled that Article 6(1) was applicable.

Now under section 23 of the Medical Practitioners Act 1975, it is the medical council that deals at firs instance with complaints of professional misconduct against a medical practitioner. Section 24 of the Act then provides for a right of appeal from a decision of the medical council to a Judge of the Supreme Court whose decision is final. I hold on the basis of Le Compte’s case that Article 9(1) of the Constitution does not apply to disciplinary proceedings before the medical council. There are common law principles of procedural fairness under the rubric of judicial review which are relevant to such proceedings. But this case was not framed or argued on the basis of those principles.

Even though there were no submissions on the question whether Article 9(3), Article 9(4)(a) and Article 9(5) are applicable to disciplinary proceedings before the medical council, I am of the view that these constitutional provisions are not applicable. They are more appropriate to criminal proceedings rather than to disciplinary proceedings before a professional tribunal such as the medical council. It is also to be noted that the substance of the allegation in respect of which the medical council has served notice on the plaintiff is the fees that he charged to the patient for his professional services when it is said he should not have done so. Obviously that is not an allegation of a criminal offence, even though it may or may not amount to professional misconduct depending on the relevant circumstances.

It is also to be further noted that the presumption of innocence in Article 9(3) has been traditionally associated with a person charged with a criminal offence in criminal proceedings. The rights in Article 9(4), which includes legal aid, have also for a long time been associated with a person charged with a criminal offence. The right in Article 9(5) is the embodiment in the Constitution of the right to silence of a person accused of an offence which has been traditionally associated with an accused in criminal proceedings.

All in all then, I have come to the view that Article 9 of the Constitution is not applicable to disciplinary proceedings before the medical council. Accordingly it is not necessary to consider the alleged violations of Article 9 raised on behalf of the plaintiff.

The motion is dismissed.

CHIEF JUSTICE

Solicitors
Kruse, Enari & Barlow for Plaintiff
Attorney Generals Office for Defendant