|
ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
|
|
|
(1984) 3 CLR 480
1984 April 7
[A. LOIZOU, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
DR. CONSTANTIA LIASIDOU,
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH
THE MEDICAL BOARD OF CYPRUS AND/OR
THE DEPARTMENT OF MEDICAL SERVICES
OF THE MINISTRY OF HEALTH,
Respondents.
(Case No. 424/79).
Medical Registration (Specialist Qualifications) Regulations, 1979—Not ultra vires section 23(2) of the Medical Registration Law, Cap. 250—Recognition of specialization in Paediatrics—Postgraduate training required under regulations 3 and 4—No violation of Articles 25 and 28 of the Constitution due to absence of transitional provisions in these Regulations for those who started their specialization under the pre-existing 1963 Regulations.
The applicant who graduated in 1974 from the Medical School of Athens University applied in April, 1979, to have her specialization in Paediatrics recognized. Her application was refused by the respondent Medical Board on the ground that she had not completed post-graduate training of a duration of four years in the branch of Paediatrics as provided by regulation 3(b) of the Medical Registration (Specialist Qualifications) Regulations, 1979; and hence this recourse. From the certificates produced by applicant before the respondents her post-graduate training was for two years as a physician and only for 27 months for her specialization in Paediatrics.
Counsel for the applicant mainly contended:
(a) That the Medical Registration (Specialist Qualifications) Regulations, 1979 are ultra vires section 23(2) of the Medical Registration Law, Cap. 250.
(b)That on the basis of regulations 3 and 4 of the above Regulations she had the required post-graduate training of four years in a University hospital which included theoretical teaching and practical training on a systematic basis with compulsory participation of the trainee in the hospital activities.
(c)That the 1979 Regulations have no transitional provisions for those who started their specialization under the pre-existing Regulations of 1963; and that in this way a differentiation is made which is arbitrary to such an extent that renders the said Regulations unconstitutional as offending Articles 28 and 25 of the Constitution, which articles protect the equality before the laws and the freedom to exercise a profession respectively.
Held, (1) that the 1979 Regulations are not ultra vires section 23(2) of the Medical Registration Law, Cap. 250.
(2) That on the true construction of regulations 3 and 4, read together, the four years postgraduate training must be in respect of the specialization claimed by an applicant and not the aggregate of postgraduate training for different branches of medicine.
(3) That there was no violation of Article 25 or 28 of the Constitution by the said regulations; that there does not appear to be any unequality of treatment between the applicant and any other person who was in the same position as herself and there is no unwarranted restriction for the exercise of her profession offending Article 25 of the Constitution; accordingly the recourse must fail.
Application dismissed.
Recourse.
Recourse against the refusal of the respondents to recognise applicant's specialisation in Paediatrics.
A. S. Angelides, for the applicant.
R. Gavrielides, Senior Counsel of the Republic, for the respondents.
Cur.adv. vult.
A. LOIZOU J. read the following judgment. The applicant graduated in 1974 from the Medical School of Athens University. On the 18th January, 1979 she applied for registration in Cyprus as a Medical Practitioner under the Medical Registration Law, Cap. 250.
On the 19th April 1979, she applied to have her Specialisation in Paediatrics recognized. There were attached to her application three certificates. One dated the 28th March, 1979 (Appendix 2), which is the "Decision granting (to her) a permit for the title of Medical Specialization in Paediatrics". The second, a certificate (Appendix 3), from Dr. AntoniosBillis, Director of the Second Physicians Clinic of the State General Hospital of Athens that she had worked as an Internal Assistant, on payment, from the 19th September 1974 to the 21st September 1976 for the purpose of obtaining the Specialisation of Physician, and the third a certificate dated the 14th December 1978 (Appendix 4), from the Second Paediatric Clinic of the Children's Hospital of Athens University from Professor ConstantinosPapadatos, that the applicant attended the said Clinic, which is under his directorship in order to cover the required period for acquiring the Specialisation in Paediatrics from the 27th September 1976 to the 12th December 1978, during which period she was absent as stated therein for 75 days on account of a strike and leave without pay which was completed in order to cover the full period of specialisation. Her application was refused by the Medical Council on the ground that she had not completed post-graduate training of a duration of four years in the branch of Paediatrics as provided by the Regulations in force and their decision was communicated to her by letter of its Chairman dated the 29th August 1979, (Appendix 5).
On the 18th September, 1979, the Medical Council received an undated letter from the applicant (Appendix 6) by which she was seeking a re-examination of her application. She asked that the following should be taken into consideration, (1) that the decision was not communicated to her in time. (2)(a), That she had completed the required in Greece period of practice in the University Hospital, Paediatric Clinic, on the 10th December 1978. (b) That she was successful in the relevant examinations on the 6th March 1979. (c) That the opinion of the Central Scientific Council for Medical Personnel on the basis of which she was given by the Administration of Attica the title of Specialist in Paediatrics, was given on the 16th March, 1979, and (3) that it is impossible for her to return to Greece and complete the required by the new Regulations period for Specialisation as on the one hand she had already been granted the title of Specialist and on the other hand she had signed an undertaking that she was not entitled to work in Greece any longer.
The Regulations referred to in the letter of the Chairman of the Medical Board are the Medical Registration (Specialist Qualifications) Regulations, 1979, published in Supplement No.3, Part I to the Official Gazette of the Republic of the 23rd March, 1979 under Notification No. 54 pp. 149-150.
In so far as relevant they read:
"3. Τα προσόντα άτινα παρέχουσι το δικαίωμα εις πρακτήρα ιατρόν όπως περιγράφη εαυτόν ως ειδικόν η όπως καθ' οιονδήποτε τρόπον χρησιμοποιή την λέξιν 'ειδικός' εις οιανδήποτε ειδοποίησιν εκτιθεμένην ή δημοσιευομένην δυνάμει του άρθρου 22 του Νόμου, είναι τα ακόλουθα:
Μεταπτυχιακή εκπαίδευσις εις τον οικείον κλάδον της ιατρικής διαρκείας ουχί βραχυτέρας της καθοριζομένης έν τοις εφεξής δι' έκάστην των αναφερομένων ειδικοτήτων: (α) Πέντε έτη εις την περίπτωσιν των ακολούθων ειδικοτήτων :
...................
(β) Τέσσερα έτη είς την περίπτωσιν των ακολούθων ειδικοτήτων :
...................
Παιδιατρική
...................
5. Άπαντες οι προ της ισχύος των παρόντων Κανονισμών θεωρούμενοι ως εχοντες τα νόμιμα προσόντα ίνα περιγράφωσι έαυτούς ως 'ειδικούς' ή ίνα χρησιμοποιώσι την λέξιν 'ειδικός' εις είδοποίησιν εκτιθεμένην ή δημοσιευομένην δυνάμει του άρθρου 22 του Νόμου, πρακτηρες ιατροί θα εξακολουθήσωσι να θεωρώνται ότι κέκτηνται τα τοιαύτα προσόντα και εάν ακόμη δεν κατέχωσι τα υπό του Κανονισμού 3 αναγραφόμενα προσόντα".
In English they read:
"3. The qualifications which entitle a medical practitioner to describe himself as specialist or in any way to use the word 'specialist' in any notice displayed or published by virtue of section 22 of the Law are the following:
Post-graduate training in the relevant branch of medicine of a duration not shorter than that specified hereinafter for each of the mentioned specialisations:
(a) Five years in the case of the following specialisations:
.....................
(b) Four years in the case of the following specialisation:
......................
Paediatrics.
5. All medical practitioners who before the coming into force of these Regulations were deemed as having the lawful qualifications in order to describe themselves as 'specialists' or to use the word 'specialist' on a notice displayed or published by virtue of section 22 of the Law, shall continue to be deemed as possessing the said qualifications even if they do not possess the qualifications prescribed by Regulation 3."
I need not reproduce here verbatim regulation 4. It is sufficient to say that it provides that for the calculation of the periods specified in regulation 3, there may be taken into consideration also periods of such training in more than one University Centres Training Hospitals in which training of doctors takes place or in other Training Centres which might be approved by the Medical Council.
These regulations repealed the Medical Registration (Specialist Qualifications) Regulations of 1963, published in Supplement No. 111, part 1, to the Official Gazette of the Republic of 1963 under Notification No. 429. Regulation 3 thereof provided as follows:
"Τα προσόντα άτινα παρέχουσι το δικαίωμα εις πρακτήρα ιατρόν όπως περιγράφη εαυτόν ως 'είδικόν' η όπως καθ' οιονδήποτε τρόπον χρησιμοποιή την λέξιν 'ειδικός' εις οίανδήποτε ειδοποίησιν εκτιθεμένην ή δημοσιευμένην δυνάμει του άρθρου 22 του Νόμου, είναι τα ακόλουθα:
(α) πτυχίον, δίπλωμα, τίτλος ή πιστοποιητικόν ειδικού κτηθέν μετά το πέρας των Πανεπιστημιακών σπουδών άλλως η δι' άλληλογραφίας, παρέχον το δικαίωμα εις τον κάτοχον αυτού όπως αναγνωρίζεται ως ειδικός εν τω ειδικώ τούτω κλάδω της ιατρικής, εις την χώραν ένθα τούτο εκτήθη, και όπερ παρέχεται υπό τινός Πανεπιστηρίου, Κολλεγίου, η Ιατρικής Σχολής, ή το πτυχίον, δίπλωμα, τίτλος, ή πιστοποιητικόν εκηρύχθη ανεγνωρισμένον προσόν δια τους σκοπούς του άρθρου 7(1)(γ)(ι) του Νόμου ή .. ".
In English they read:
"The qualifications which entitle a medical practitioner to describe himself as 'specialist' or in any way to use the word 'specialist' in any notice exhibited or published by virtue of section 22 of the Law are the following:
(a) decree, diploma, title or certificate of specialist acquired after the completion of university studies otherwise than by correspondence giving the right to its holder to be recognized as specialist in this special branch of medicine, in the country where same was acquired, and which is given by a University College or Medical School, of which the degree, diploma, title, or certificate has been declared to be a recognized qualification for the purposes of section 7(1)(c)(i) of the Law or...."
The aforesaid Regulations were made under the provisions of section 23(2) of the Law and which as amended by Law No. 53 of 1961 reads as follows:
"No medical practitioner shall describe himself as a 'specialist' or in any way employ the word 'specialist' in any notice displayed or published under section 22 unless he satisfies the Medical Council that he is in possession of such special qualifications as may be specified by the Medical Council with the approval of the Council of Ministers, as would entitle him to be regarded as a specialist in any branch or specialisation of the medical profession in which he practices".
I may conveniently deal here with the argument advanced on behalf of the applicant that the aforesaid Regulations are ultra vires the Law, which I do not consider as a valid one in view of the clear and unambiguous words of the aforesaid subsection 2 of section 23 which empowers the Medical Council with the approval of the Council of Ministers to specify the special qualifications that entitle a medical practitioner to be regarded as a 'specialist' in any particular branch of the medical profession.
It has been the case for the applicant that on the basis of regulations 3 and 4 hereinabove set out she had the required postgraduate training of four years in a University hospital which included theoretical teaching and practical training on a systematic basis with compulsory participation of the trainee in the hospital activities.
This assertion on the part of the applicant is not born out from the certificates she produced to the respondents as her postgraduate training was for two years as a physician and only for 27 months for her specialisation in Paediatrics, and on the true construction of regulations 3 and 4, read together, the four years post-graduate training must be in respect of the specialisation claimed by an applicant and not the aggregate of postgraduate training for different branches of medicine.
Further and in the alternative it is the allegation of the applicant that she satisfied the prerequisites of regulation 5, inasmuch as she sat for her examinations for her specialisation in Paediatrics on the 6th March 1979 and the results were made known on the 16th March, 1979, that is before the coming into force of the new Regulations of 1979, which came into force on the 23rd March on that year. I am afraid, I cannot agree with this submission as the decision, (Appendix 2), by which the appropriate under the relevant Greek Law, organ, gave her her permit for the title of Medical Specialisation in Paediatrics was taken on the 28th March 1979, as it appears from Appendix 2, from which it should be observed that there were other matters to be considered before such permit was granted other than the successful taking of the examinations which was only one of the prerequisites.
To my mind the applicant could not be considered as possessing the specialisation of Paediatrics before the decision on the subject was taken on the 28th March 1979.
There is nothing therefore, on the material before me, warranting the claim of the applicant that the respondent Medical Council failed to carry out a due inquiry into the matter.
It has been further contended that the new Regulations of 1979 have no transitional provisions for those who started their specialisation under the preexisting Regulations of 1963. In this way a differentiation is made which is arbitrary to such an extent that renders the said Regulations unconstitutional as offending Articles 28 and 25 of the Constitution, which Articles protect the equality before the laws and the freedom to exercise a profession respectively. I see no violation of either Article by the said regulations. There does not appear to be any un-equality of treatment between the applicant and any other person who was in the same position as herself and there is no unwarranted restriction for the exercise of her profession offending Article 25 of the Constitution.
For all the above reasons this recourse is dismissed as the sub judice decision was reasonably open to the respondent Medical Council and was taken in accordance with the relevant Law and Regulations and the general principles of administrative Law.
In the circumstances, however, there will be no order as to costs.
Recourse dismissed. No order as to costs.