Dr. Aleida Pott v Medical Council of Belize
| Jurisdiction | Belize |
| Judge | Alexander, J. |
| Judgment Date | 28 November 2023 |
| Court | Supreme Court (Belize) |
| Year | 2023 |
| Docket Number | CLAIM No. CV260 of 2023 |
CLAIM No. CV260 of 2023
IN THE HIGH COURT OF BELIZE
Mr. Dale Cayetano for the Applicant
Ms. Agassi Finnegan for the Respondent
The applicant (“Dr. Pott”) is a medical doctor in Belize. Dr. Pott filed an amended application for leave to apply for judicial review of the decision of the respondent (“the Council”) conveyed in a letter dated 9 th February 2023 in which Dr. Pott's practicing certificate was suspended for one year with effect from 1 st February 2023. She seeks leave to move the decision of the Council into the High Court to get an order of certiorari to quash it. Dr. Pott also seeks an order that the Council be directed to provide a copy of her personnel file, together with the entire record of the disciplinary proceedings held by the Council, within three days from the grant of the order. I shall refer to the letter dated 9 th February 2023 suspending Dr. Pott's practicing certificate as “the suspension letter”.
The amended application was filed on 14 th July 2023. This followed a previous notice of application filed on 9 th May 2023, supported by an undated affidavit naming different respondents but served on the Council (discussed below).
Dr. Pott raises six grounds of objections to the impugned decision, with the last one only added in her amended application:
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1. The Council exceeded its jurisdiction by commencing disciplinary proceedings against Dr. Pott when the nature of the complaint did not reach the threshold prescribed by section 13(4) of the Medical Practice Act, Cap 318 (“MP Act”).
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2. The Council acted ultra vires the Regulations in its failure to issue a “show cause” letter to Dr. Pott in accordance with section 13 (1) (2) of the MP Act.
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3. The Council also violated the principles of natural justice and acted in breach of section 14(1)(a)(b) of the MP Act when it refused to inform and invite Dr. Pott to the disciplinary hearing and to afford her the right to defend herself and put her case to the Council.
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4. The decision of the Council conveyed in the suspension letter is patently unfair, in that it contains no reasons for the Council's decision.
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5. The decision of the Council to suspend Dr. Pott's practicing certificate was harsh and unjust.
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6. There was apparent bias in the Council's decision.
In response, the Council filed the first affidavit of Dr. John Waight dated 27 th June 2023, objecting to the grant of leave (“the first Waight affidavit”). The Council detailed the factual circumstances that gave rise to its decision. Subsequent to the application being amended, the Council filed the second affidavit of Dr Waight on 28 th July 2023 (“the second Waight affidavit”). Interestingly, the amended application was never served on the Council but the Council replied having discovered the filing on the Apex E-Filing Portal.
The Council stated in response to the amended application that Dr. Pott has not presented any facts or evidence that discloses an arguable ground with a realistic prospect of success. Her amended application is also subject to two discretionary bars, namely delay and the availability of an alternative remedy to resolve the issue. It must be dismissed.
For the reasons set out in this judgment, I refuse leave to apply for judicial review. I find that Dr. Pott has not shown an arguable case having a realistic prospect of success and additionally fails to acknowledge and address the alternative statutory remedy. I do not accept that her silence about the existence of an alternative remedy means that it did not exist or was inappropriate in this case.
Dr. Pott earned her Doctor of Medicine on 6 th August 2012 from the Central American Science University School of Medicine. On 19 th April 2016, she was issued with a licence to practice medicine in Belize, which was renewed annually until the decision that is the subject of the present proceedings.
On 5 th June 2019, Dr. Pott was appointed to the post of Medical Officer II at the Ministry of Health and Wellness (“the Ministry”) and has worked at various departments within the Ministry.
During the COVID Pandemic, she was directed to do training in COVID vaccines and later was responsible for administering vaccines and swabbing patients for COVID.
On 5 th October 2022, Dr. Pott received a letter from the Registrar of the Council regarding a request by the Ministry for the Council to intervene in a matter of disciplinary proceedings. The letter notified that she had allegedly falsified medical records in connection with the administration of COVID vaccines. It also stated that the Council intended to proceed with the complaint in accordance with section 14(2) of the MP Act. Dr. Pott was asked to provide an explanation by 30 th November 2022. Attached to the letter were documents provided by the Ministry, purportedly on the alleged offence.
Dr. Pott did not respond to the complaint 1 as notified by the Registrar by letter dated 5 th October 2022. I shall refer to the letter received by Dr. Pott on 5 th October 2022 as “the Registrar's letter” or “the show cause letter”.
On 26 th January 2023, the Council met and reviewed the complaint made against Dr. Pott. At the conclusion of its meeting, the decision was made to suspend Dr. Pott. This decision was conveyed in the suspension letter, which allegedly was hand delivered on 9 th February 2023, the same date it was written.
Dr. Pott claims that she received the suspension letter on 14 th March 2023, advising that her practicing certificate was suspended for one year from 1 st February 2023.
Rule 56 of the Supreme Court ( Civil Procedure) Rules, 2005 (“CPR”) governs the judicial review procedure. It requires that the court's permission be obtained before an applicant can proceed to the substantive claim. Under CPR 56.2(1), an applicant must have sufficient interest in the subject matter of the application. Dr. Pott has sufficient interest, as she is the person directly and adversely affected by the decision. It is not in dispute that she qualifies under CPR 56.2(2)(a) to seek leave to review the procedures used to arrive at the decision. As there is no contest about her interest to apply for judicial review, I turn to the relevant issues.
The present application raises several issues, primary of which are:
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1. What impact, if any, does the non-compliance with procedural rules have at this stage?
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2. Whether Dr. Pott has an arguable case with a realistic prospect of success.
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3. Whether the amended application is subject to any discretionary bar.
The Council has raised several preliminary issues, which essentially decried certain procedural failings in the amended application. The amended application names the Council as the only respondent but this conflicts with the affidavit in support, where several different respondents are named including “Dr. George Goff, Chairman Belize Medical Council” and “Belize Medical and Dental Association”. The affidavit is the same as attached to the original application save that it is now dated 14 th July 2023. Additionally, the body of the affidavit (and amended application) refers to the respondent as “Belize Medical of Belize”, with a listed registered address in Belize City. Ms. Finnegan states that it is Belize Medical of Belize, therefore, and not the Council, against whom the claim must be maintained.
Ms. Finnegan argues also that the wrongly named respondents in the title of the affidavit cannot lawfully be substituted or added as additional parties in this manner. Dr. Pott is precluded from inserting them by way of her affidavit or otherwise. Ms. Finnegan asks that the amended application be dismissed on this basis.
Ms. Finnegan also points to the non-compliance with CPR 30.2(e). She states that the form of the affidavit is wrong, as it is not properly marked. She asks that the affidavit be struck. Without evidence in support as required under CPR 56.3(4), the application must be dismissed.
Ms. Finnegan also states that the amended application should be dismissed because its affidavit lacks sufficient facts to support or verify the claims made against the Council, as acting outside its jurisdiction. Further, according to Ms. Finnegan, the order for disclosure is misplaced and constitutes a fishing exercise, as Dr. Pott does not seem to know the ambit of her case. Moreover, Dr. Pott has had ample opportunities to put right her application but failed to do so.
Dr. Pott has not responded to the preliminary issues raised by the Council.
Under CPR 30.2(e), each affidavit is mandated to be marked at the top right-hand corner with the party on whose behalf it is filed, the initials and surname of the deponent, and the number of the affidavit in relation to the deponent. Despite being given a previous opportunity to amend her application, there remains a continuing trend of non-compliance with the rules and of poor pleadings. She has named one respondent on her amended application who is not the same as the two named respondents on her affidavit in support. In the body of her application and affidavit she refers to a fourth respondent, Belize Medical of Belize.
An applicant seeking review of a decision made against her must come knowing the ambit of her case, and not be on a fishing expedition to identify its contours. At the very least, Dr. Pott ought to have known the decision maker against whom she complains and against whose decision she seeks a review. She did not only fail to put her filings in order, she also did not serve the amended application. The lack of service alone is untenable and flouts the overriding objective of the rules. It is not...
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