By NEIL HARTNELL
Tribune Business Editor
The Supreme Court has blasted the Bahamas Medical Council (BMC) for “undermining its integrity” through improperly accessing a doctor’s “confidential” employment file held by a government agency.
Justice Ian Winder, in an April 22, 2020, ruling, found that the council, which is responsible for protecting the Bahamian people’s health and safety via the licensing/registration of all practicing doctors, had failed to provide Dr Mandela Kerr with “real and substantive due process”.
He ruled that the restrictions imposed on Dr Kerr’s application to be licensed as an independent doctor were “so unreasonable” that no independent regulatory body “properly directing themselves” could - or should - have arrived at such a decision.
Noting that this was “the second round of litigation” between Dr Kerr and the council over the former’s application, Justice Winder pleaded for “cooler heads to prevail on both sides of this dispute” given the “unnecessarily harsh and disparaging comments and accusations” being levied by all sides.
He recorded that the battle began when Dr Kerr, who had been registered by the council on November 16, 2015, applied to be licensed as a fully independent medical practitioner - meaning he could practice without supervision or oversight - on October 13, 2017.
The council responded by saying he was ineligible for registration, and needed to successfully pass the Special Purpose Examination (SPEX), which triggered Dr Kerr’s first legal action. Justice Winder set aside the council’s first decision on October 31, 2018, on the basis that the application had not been given “proper consideration”.
Two months later, the council requested that Dr Kerr provide it with evaluations from his supervisors at Princess Margaret Hospital and the Department of Public Health, together with documentation of cases he managed when assigned to the public health clinic in Andros.
However, the doctor’s attorneys argued that there was “no reasonable or lawful basis” for the information to be provided and branded the council’s request illegal. The council’s response was to invite Dr Kerr to a meeting where he could present his case, while warning him that “concerns have been raised in respect to your general medical knowledge, and the adequacy thereof”.
The doctor asked for the council to provide details on its “concerns”, and attended an April 25, 2019, meeting with its assessment committee that was chaired by Dr Mark Weech. Also present were attorneys for both sides, and the council’s registrar, Dr Merceline Dahl-Regis, who currently appears regularly on national TV as the government’s main adviser on the COVID-19 pandemic.
The parties, though, made little headway at the meeting after Dr Kerr and his attorney demanded to know the lawful basis for holding it. Five days later, the council told the doctor that while it had decided to licence him as a “fully licensed medical practitioner” he was only allowed to practice under the supervision of someone else who had held such status for at least five years.
“The council’s assessment of your application is that it could not reasonably conclude that it would be in the public interest to license you without the aforementioned restrictions and conditions,” the council told Dr Kerr of the rationale for its decision.
“You have been provided with the material which the council had before it, which raised concerns as to your readiness for independent practice and, in particular, your general medical knowledge base. Regrettably those concerns have not been resolved to a point where the Council can reasonably conclude that it would be in the public interest to register and license you without restrictions and conditions.”
Dr Kerr immediately launched Judicial Review proceedings to overturn this decision, challenging both the rational for the decision and the processes through which it had been reached. He argued that the restrictions imposed upon him were “arbitrary, oppressive, irrational, unreasonable and unlawful”.
Setting out his medical qualifications, several of which were obtained from Cuban and Latin American schools, Dr Kerr argued that he had been treating patients through the Department of Public Health since 2016 and had at times been the only doctor on Long Island and Andros.
Denying that there had been any patient complaints against him, Dr Kerr alleged that “the correspondence between he and the BMC (Council) demonstrates that the BMC, in unlawful conspiracy with others, had set out to besmirch and slander his professional reputation.
“He refused to provide the BMC with his confidential employee records not out of any concern regarding the contents thereof, but rather because the BMC had no statutory authority to request it and nor did it have a reasonable basis for requiring the same,” Justice Winder added.
“Kerr says that the BMC refused to explain the statutory authority upon which it sought and secured his confidential employee records from the Department of Public Health and the Public Hospitals Authority.” The doctor also said he had initiated legal proceedings against both government agencies “the unlawful disclosure of his confidential employee records”.
Dr Kerr argued that the Council’s actions had caused him “embarrassment both professionally and personally”, and that the restrictions imposed on his licence had effectively undermined its purpose - being able to practice independently - and made it worthless.
He was backed by affidavit evidence from other doctors, including Dr Melisande Bassett, president of the Bahamas Doctors Union (BDU), which represents the junior doctors, who all argued it was “incredible” to suggest doctors working in the public health system could be a danger to patient safety.
One, Dr Lina Mortimer Reyes, alleged that the Council also attempted to unsuccessfully obtain her confidential appraisals and assessments that are supposed to be protected by public service regulations.
In reply, Dr Weech, who is also the Council’s chair, said the relief sought by Dr Kerr “will have the effect of usurping the lawful powers of the BMC in a manner which is completely at odds with the unanimous professional opinion of the BMC and its members, and which would jeopardise public safety”.
He alleged that evaluations of Dr Kerr’s performance by senior physicians had caused the Council concern as they raised questions about his medical knowledge base. As a result, the Council felt it was “in the public interest” that he be supervised.
Justice Winder, in his ruling, found that the Council was entitled to consider Dr Kerr’s application afresh and request evaluations of his performance of him. Yet he added: “What is troubling to Kerr, and indeed to the court, was how the Council was able to obtain private confidential information on Kerr’s employment file with public health.....
“Dr Weech’s explanation, that the material was in the Council’s file of Kerr, is confusing when the record reflects that Dr Dahl-Regis, registrar of the BMC, had been asking for the material and, up to January 9, 2019, had offered to assist him in obtaining it.”
Justice Winder said that the Council’s access to his confidential files was especially troubling because they revealed “senior physicians seeking to overturn positive evaluations given by physicians who actually oversaw his [Dr Kerr’s] work”. And some of the evaluations were based on evidence more than two years-old.
“On any account, the BMC’s obtaining of the material on Kerr’s personnel file was improper,” Justice Winder blasted. “The BMC, managed by physicians who previously held high offices in the public service, knew or ought to have known that the accessing of Kerr’s confidential evaluations was wrong. In my view, this is even more so where Kerr was resisting production, albeit unjustifiably.
“The Court of Appeal, has in the past been forced to remind the BMC that it is an independent statutory authority and not an agency of the Ministry of Health or the executive..... Instances like this, involving the sharing of personnel files, suggest that the BMC has not paid heed to the condemnation of the Appeals Court. This is unfortunate and undermines the integrity of this important body.”
Justice Winder also criticised the Council for “casually executing” Dr Kerr’s right to be heard, and to respond to the concerns about him, finding that this was “an entitlement under principles of basic natural justice”.
He added: “Regrettably, rather that re-engage Kerr and seek his responses to their concerns in writing, the assessment committee immediately ended its investigation and reported to the Council. Within a five-day period of the meeting, the full panel of the BMC is convened and, prematurely in my view, issues the decision which is the subject of this dispute.
“In my view, Kerr was denied substantive natural justice. Weech admits in his evidence, that, had the Council had the benefit of Kerr’s position, as came out in this action, the decision may well have been different.
“Additionally, in regretting that Kerr did not engage with the BMC, Weech also asserts that the evidence which came out in the hearing would have been vital to the decision-making process. This only confirms that the application was not fully considered.”
Justice Winder also found against the restrictions imposed on Dr Kerr’s licence, adding: “What the BMC couldn’t do was to grant the license and registration on the one hand, and impose conditions and restriction which make the benefit of the grant impossible. In all the circumstances, therefore, the restrictions are so unreasonable that no reasonable council properly directing themselves could come to such a decision.”
Finding that the Council’s decision “cannot stand and must be quashed”, Justice Winder sent Dr Kerr’s application back for a fresh hearing.