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(1986) 3 CLR 170

1986 February 13

 

[KOURRIS, J.]

IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION

ANDREAS KOTZIAMANIS.

Applicant,

v.

THE MEDICAL BOARD,

Respondent.

(Case No. 627/85).

Constitutional Law—Constitution, Articles 25 and 28—The Medical Registration Law, Cap. 250 as amended by Law 53/61—The Regulations made under s. 23(2)—Recognition of medical practitioners as specialists—The said regulations do not violate any of the above constitutional provisions.

The Medical Registration Law, Cap. 250 as amended by Law 53/61 ss.22 and 23(2)—Recognition of medical practitioners as specialists—The Regulations applicable are those made under s. 23(2)—Such regulations are intra vires the said enabling section —Reg. 3 of said regulations.

Res Judicata—Refusal to recognise applicant as a specialist in Radiology—Said refusal annulled on the ground of misapprehension of the true facts—Re-examination of case following such annulment—New refusal—In the circumstances doctrine of Res Judicata is not applicable.

Administrative Law—Reasoning of an administrative act.

The applicant, a medical practitioner, was granted in Greece a certificate of specialization in Radiology. On 3.10.80 he applied to the Medical Board to have his specialization recognised. The Board dismissed the said application on the ground that the applicant had not completed a post-graduate training in that field for a period of four years as provided by the relevant regulations in force. As a result the applicant filed Recourse 41/81. The Supreme Court annulled the said refusal of the Board.

As a result of such annulment the Board reconsidered the application but once again it rejected it on the ground that the applicant had not completed a post-graduate training in the field of Radiology for a period of four years as provided by the Regulations in force because the Limassol Hospital was not considered by the Board as a Hospital where a doctor can obtain post-graduate experience for his training in Radiology. The Board stated that in reaching this decision it duly considered the judgment of the Court in the said recourse.

As a result the applicant filed the present recourse.

It should be noted that on the 14.7.79 the chairman of the Medical Board addressed a letter to Mr. Pontificas, Professor of Radiology in Athens University, requesting that the applicant be allowed to continue his specialization at the Nicosia General Hospital and after the completion of the relevant period of specialization to take the exams in Greece for obtaining the title of Specialist Radiologist.

It should further be noted that the first decision of the Medical Board was annulled by the Court in recourse 41/81 on the ground that as the other members of the Board were not aware of the said letter of the Chairman to professor Pontificas the decision of the Board was vitiated by a misapprehension of the true facts.

The applicant impugns the sub judice decision on the following grounds:

(a) The regulations by virtue of which the decision was taken are contrary to Article 25 of the Constitution;

(b) the regulations are ultra vires the enabling section;

(c) the regulations imposed restriction as to advertisement and not as to recognition of specialization:

(d) the decision lacks due reasoning;

(e) there is misconception of fact;

(f) the respondent did not take into consideration at all either the judgment of the Court in recourse No. 41/81 or the said letter dated 14th July 1979, to Mr. Pontificas.

Held, dismissing the recourse (1) The expression "prescribed by law" in Article 25.2 of the Constitution does not prevent the House of Representatives from delegating its power to legislate in respect of prescribing the form and manner of, and the making of other detailed provisions for, the carrying into effect and applying the particular restriction or limitation within the framework as laid down by such law (Police v. Hondrou and Another, 3 R.S.C.C. 82 applied). The regulations in question do not violate either Article 25 or Article 28 of the Constitution (Liasidou v. The Republic (1984) 3 C.L.R. 580 applied.)

(2) The Regulations in question were not made, as counsel for the applicant submitted, under s. 22, but they were made under s. 23(2) of the Medical Registration Law. Cap. 250 as amended by Law 53/61. The said regulations are intra vires the said enabling section (Liasidou v. The Republic supra applied).

(3) The third point raised by applicant is untenable. A mere perusal of regulation 3 suffices to say that the respondent Board is entrusted with the task of recognising a medical practitioner as a specialist in his field, whereas it is s. 22 of the said Law and the regulations made there-under that deal with the advertisement of doctors.

(4) The submission that the sub judice decision lacks due reasoning because no reason why service at the Limassol Hospital is not included as service for the purposes of postgraduate training in Radiology had been stated is also untenable, because the Board had stated that the Limassol Hospital as well as all Hospitals in Cyprus are not considered at present as Hospitals which are approved by the respondent Board for purposes of recognition of the title of specialist.

(5) The sub judice decision in Recourse 41/81 was annulled as the Board acted under a misapprehension of the true facts in that they did not take into consideration the said letter of their chairman to professor Pontificas. It is apparent from the contents of this letter that it was meant for the recognition of the applicant as a Specialist in Greece and not in Cyprus. In view of the above the doctrine of Res Judicata cannot be applied in the circumstances of this case.

Recourse dismissed.

Costs against the applicant.

Cases referred to:

Kotziamanis v. The Medical Board (1985) 3 C.L.R. 964;

Police v. Hondrou and Another, 3 R.S.C.C. 82;

Liasidou v. The Republic (1984) 3 C.L.R. 480;

Marangos and others v. The Municipal Committee of Famagusta (1970) 3 C.L.R. 7;

Pieris v. The Republic (1983) 3 C.L.R. 1054.

Recourse.

Recourse against the refusal of the respondent to recognize applicant as a Specialist in Radiology (Aktinodiagnostiki).

A. Poetis, for the applicant.

A. Vassiliades, for the respondent.

Cur. adv. vult.

KOURRIS J. read the following judgment. This is a recourse against the refusal of the Medical Board to recognize the applicant as a specialist in Radiology (Aktinodiagnostiki).

The applicant graduated from the Medical School of the University of Thessaloniki on the 4th February, 1977 and was registered as a Medical Practitioner in Cyprus on the 30th April, 1980.

Between the middle of April, 1977 and the end of November, 1979 he was trained in three hospitals in Athens for obtaining a post-graduate experience in Radiodiagnosis (Aktinodiagnostiki). As a result of his said training and the passing by him of certain examinations he was granted in Greece a certificate of specialization in Radiology.

On the 3rd October, 1980 the applicant applied to the Medical Board to have his specialization recognized. His application was accompanied by three certificates issued by the doctors in charge of the Radiology department of the hospitals where he was trained, verifying that he had worked under them in order to specialize in this field. These certificates as well as the certificate granted to him in Greece are to be found in the applicant's personal file I. Y. 241/1979 which was produced as exhibit 1 before me.

The application of the applicant to be recognized as a specialist in Radiology was rejected by the Medical Board on the ground that he had not completed a post-graduate training in that field of medicine for a period of four years as provided by the regulations in force. The decision of the respondents was communicated to the applicant by a letter dated 29th November, 1980. The applicant filed a recourse under No. 41/81 and the said decision was annulled by a Judge of the Supreme Court on 18th May, 1985 (vide: Andreas Kotziamanis v. The Medical Board (1985) 3 C.L.R. 964).

In view of the said decision counsel for the applicant forwarded to the Medical Board a copy of the judgment with an attached letter dated 20th May, 1985 asking for the recognition of his client as a Radiologist (vide: Blue 36 in exhibit 1). The Medical Board convened on 20th June, 1985 and having re-examined the case rejected the application of the applicant on the ground that he had not completed his training for a period of four years as provided by the regulations in force because the Limassol hospital was not considered by the Medical Board as a hospital where a doctor could obtain post-graduate experience for his training in Radiology. The respondent Board also stated that in reaching their decision they duly considered the judgment of the Court in recourse No. 41/81.

The applicant impugns the decision of the Medical Board on the following legal grounds:

(a) The regulations by virtue of which the decision was taken are contrary to Article 25 of the Constitution; (b) the regulations are ultra vires the enabling section; (c) the regulations imposed restriction as to advertisement and not as to recognition of specialization; (d) the decision lacks due reasoning; (e) there is misconception of fact; (f) the respondent did not take into consideration at all either the judgment of the Court in recourse No. 41/81 or the letter dated 14th July, 1979, of the Director of the Department of Medical Services and Chairman of the Medical Board to Mr. Pontifikas, Professor of Radiology in the University of Athens.

Unconstitutionality of Regulations

Counsel for the applicant said that the Medical Registration (Specialists Qualifications) Regulations of 1979 (No. 54 in the 3rd Supplement, Part 1, to the official Gazette of 23rd March, 1979) are contrary to Articles 25 and 28 of the Constitution. With regard to Article 25 he argued that it is amongst those Articles which protect the liberties of the citizen and, we must assume that the Constitution meant to protect them as much as possible and he submitted that any formalities, conditions or restrictions should have been made by a law enacted by the House of Representatives and not by subsidiary legislation by any other organ of the State.

Article 25 so far as is material for the purposes of this judgment reads as follows:

"Article 25.1: Every person has the right to practise any profession or to carry on any occupation, trade or business.

2. The exercise of this right may be subject to such formalities, conditions or restrictions as are prescribed by law and relate exclusively to the qualifications usually required for the exercise of any profession or are necessary only in the interests of the security of the Republic or the constitutional order or the public safety, for the public order or the public health or the public morals or for the protection of the rights and liberties guaranteed by this Constitution to any person or in the public interest.

.........."

Counsel relied on the case of Police v. Hondrou & Another, 3 R.S.C.C. 82, also relied upon by counsel for the respondent.

Professor Forsthoff, P., in delivering the judgment of the Court at pp. 85 and 86 said as follows:

"The Court in this Case has had to consider whether, and if so to what extent, the House of Representatives is entitled to delegate its power of legislation in relation to the imposition of restrictions or limitations on the fundamental rights and liberties guaranteed by Part II of the Constitution in view of the special nature of the provisions of such Part.

It is only the people of a country themselves, through their elected legislators, who can decide to what extent its fundamental rights and liberties, as safeguarded by the Constitution, should be restricted or limited and this principle is inherently contained in all constitutions, such as ours, which expressly safeguard the fundamental rights and liberties and adopt the doctrine of the separation of powers.

In the opinion of the Court, therefore, the expression 'imposed by law' in paragraph 3 of Article 23, the expression 'prescribed by law' in paragraph 2 of Article 25, and like expressions in other Articles of Part II of the Constitution, mean, in so far as laying down and defining the extent and framework of the particular restriction or limitation is concerned, a law of the House of Representatives. This does not, however, prevent the House of Representatives from delegating its power to legislate in respect of prescribing the form and manner of, and the making of other detailed provisions for, the carrying into effect and applying the particular restriction or limitation within the framework as laid down by such law, e.g. the addition of further items or instances falling within the restriction or limitation in question. Such a course is presumed to be included in the will of the people as expressed through the particular law of its elected representatives."

Also in the case of Constantia Liasidou v. The Republic (1984) 3 C.L.R. 480 cited by counsel for the respondents and decided by A.N. Loizou, J. it was held that the regulations in question do not violate either Article 25 or 28 of the Constitution. I adopt, with due respect, what he said at p. 477: "I see no violation of either Article by the said regulations. 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 in the exercise of her profession offending Article 25 of the Constitution."

In view of the above I am of the view that this ground cannot stand and it fails.

Ultra vires:

Counsel for the applicant advanced the argument that the said regulations are ultra vires the enabling section because the restrictions are referred to in the right of a doctor to advertise himself as a specialist and not to describe himself or be recognized as a specialist. He said that this is apparent from s. 22 of the Medical Registration Law, Cap. 250 as amended by Law 53/61. He relied on the case of Marangos and Others v. The Municipal Committee of Famagusta (1970) 3 C.L.R. 7, a case on which also relied counsel for the respondents where it was decided that where the regulations are examined with a view to deciding on a contention that it is ultra vires, the answer to this question depends, in every case, on the true construction of the relevant enabling enactment. I think, that counsel for the applicant is labouring under a misconception in arguing that the regulations were made under s. 22 of the law. There is no doubt at all that the said regulations were made under s. 23(2) of the law which is a section providing for the recognition of a doctor as a specialist by the Medical Board. A mere perusal of s. 23(2) as amended by Law 53/61 and a perusal of the regulations made there under leaves no doubt that the regulations are intra vires.

Counsel for the respondents cited on this point the case of Liassidou (supra) where the same question was raised and it was decided that the regulations are intra vires the enabling section which is s. 23(2) of the Medical Registration Law, Cap. 250. I adopt, with due respect, what the learned Judge said at p. 485 "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 s.23 which empowers the Medical Board with the approval of the Council of Ministers to specify the said qualifications that entitle a medical practitioner to be regarded as a 'specialist' in any particular branch of the medical profession."

Likewise, this point fails.

With regard to the 3rd point whether the regulations in question impose restrictions as to advertisement and not as to recognition of specialization is untenable. A mere perusal of regulation 3 suffices to say that the respondent Board are entrusted with the task of recognising a medical practitioner as a specialist in his field whereas it is section 22 of the law and the regulations made thereunder that deal with the advertisement of doctors. In the case in hand we are concerned with s. 23(2) and not s. 22 of the law. Therefore, this point is invalid and fails.

Lack of due reasoning:

Counsel for the applicant pointed out that there is lack of due reasoning because the decision showed no reason why this time the service of the applicant at the Limassol hospital is not included as service for the purposes of post-graduate training in Radiology.

The submission of counsel on this point is untenable because the respondent Board in their decision stated that they rejected the application of the applicant on the ground that he had not completed a period of four years as the above-mentioned regulations provide, and that the Limassol Hospital, as well as all hospitals in Cyprus, are not considered at present as hospitals which are approved by the respondents for purposes of recognition of the title of a specialist. Therefore, as all hospitals in Cyprus are not considered as hospitals for the purpose of recognition of the title of specialist rightly the respondent Board had not taken into consideration the period of service of the applicant at the Limassol Hospital and the Nicosia General Hospital.

The last point but not the least raised by counsel for the applicant is that the respondent Board did not take into consideration at all either the judgment of the Supreme Court in Recourse No. 41/81 (supra) or the said letter of the Director of Medical Services to Professor Pontificas.

Counsel argued that although the respondent Board stated in the sub judice decision that they considered the case having in mind all the facts before it and the contents of the personal file of the applicant and the findings of the Supreme Court in Recourse No. 41/81, they should not have done so, because had they taken into considerations the said judgment they could not arrive at the decision they did. He submitted that according to the judgment they should arrive at the conclusion, that they could not take any different decision than recognizing the period of service of the applicant not only in the Limassol Hospital but also in the Nicosia General Hospital.

Counsel for the respondent argued that the wording and the tenor of the said judgment does not bear the meaning advanced by counsel for the applicant; the judgment, he said, merely states that the respondent Board in arriving at their decision have not taken into consideration the contents of the letter addressed to Professor Pontificas and consequently were acting under a misapprehension of the true facts. And, that in reaching the sub judice decision they have taken into consideration the said judgment and they said so in their letter addressed to the applicant in rejecting his application. (See their decision blue 49 in exhibit 1).

The controversial passage of the said judgment in Recourse 41/81 is at p. 970 which reads as follows:

"In the light of the contents of this letter, which is signed by the Chairman of the respondents, the allegations put forward by the respondents in their opposition and address do not appear to be correct and as, apparently, the contents of this letter were not taken into consideration by the other members of the respondent Board, I feel that in taking their decision they were acting under a misapprehension of the true facts in the case of the applicant and, therefore, their decision must be annulled."

It appears to me from the wording and the tenor of this passage of the judgment that the decision was annulled because the respondent Board were acting under a misapprehension of the true facts because they did not take into consideration the said letter. It cannot bear the meaning given to it by learned counsel for the applicant.

Again, the said letter (blue 2 in exhibit 1) is a request by the Director of Medical Services, who is also the Chairman of the Medical Board, to Mr. Pontificas, Professor of Radiology at the University of Athens, to allow the applicant to continue his specialization at the Radiology Laboratory of the Nicosia General Hospital and after the completion of the period of his specialization to allow him to take the exams in Greece for obtaining the title of Specialist Radiologist. It appears that Professor Pontificas acceded to this request and this is apparent from the fact that in the personal file of the applicant (exhibit 1) there is a certificate granting specialization in Radiology dated 11.8. 1980 (see Blue 15 in exhibit 1). It is apparent from the contents of this letter that it was meant for the recognition of the applicant as Specialist in Greece and not in Cyprus.

In view of the above premises I have reached the conclusion that the doctrine of res judicata cannot be applied in the circumstances of this case. (Pieris v. Republic (1983) 3 C.L.R. 1054).

In the circumstances the recourse is dismissed.

In exercising my discretion I order the applicant to pay the costs of the respondent.

Registrar to assess the costs.

Recourse dismissed. Applicant

to pay respondent's costs.

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