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Official Citation: 2023 LHC 5425
Court / Jurisdiction: Lahore High Court
Year of Decision: 2023
Decision Date: 2023-10-19
Parties: Fareeha Kanwal vs Punjab Healthcare Commission and others
Ruling Summary: This decision was rendered by the Lahore High Court on 2023-10-19, officially reported as 2023 LHC 5425. In this matter between Fareeha Kanwal and Punjab Healthcare Commission and others, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2023LHC5425
Court Name: Lahore High Court Judge(s): Tariq Saleem Sheikh Title: Fareeha Kanwal vs Punjab Healthcare Commission and others Case No.: Writ Petition No. 71548/2022 Date of Judgment:2023-10-19 Reported As: 2023 LHC 5425 Result: Order Accordingly
Judgment Tariq Saleem Sheikh, J.- This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, is directed against Punjab Healthcare Commission's decision dated 01.11.2021 and the judgment dated 12.10.2022 delivered by the District Judge, Faisalabad. Facts of the case 2. On 19.10.2019 at 08:00 a.m., the Petitioner, who was 23 years old at that time, was admitted to Prime Care Hospital, Faisalabad (PCH), for delivery of her baby under the care of Respondent No.5, Consultant Gynecologist. On the first day, Respondent No.5 told the Petitioner's attendants that the birth would be regular, so they purchased medicines from the hospital's pharmacy for the normal procedure. On 20.10.2019, she informed them that a Caesarean section (C-section) was urgently required and operated on the Petitioner under epidural anaesthesia administered by Respondents No.6 and 7. A baby girl was born. After some time, the hospital staff handed over the newborn to the Petitioner's family members but shifted her to the room after an hour. The Petitioner regained consciousness the following morning, but the doctors discovered that the lower part of her body was paralyzed. Respondent No.5 recommended conducting MRI, CT Scan, and NCS-EMG. These tests revealed that she had developed paraplegia/ plexopathy. She lost control of her urine and stool and could not pass them without a catheter bag and enema. On 09.11.2019, PCH discharged her, even though there was no improvement in her condition. 3. On 18.11.2019, the Petitioner filed a complaint with the Punjab Healthcare Commission (the "Commission") through her Special Attorney, Muhammad Nazim, against PCH (Respondent No.4), its doctors (Respondents No.5 to 7), and PCH's administrator (Respondent No.8), alleging medical negligence, maladministration, and malpractice. The Commission took cognizance and issued notice to Respondents No.4 to 8.
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4. Respondent No.8, administrator of PCH, submitted his reply stating that Respondent No.5 admitted the Petitioner to the hospital for delivery on 19.10.2019. Respondent No.7, an anaesthetist, administered her epidural, which was partially ineffective. Therefore, Respondent No.6, another anaesthetist, gave the second epidural. Meanwhile, Respondent No.1 decided to perform a C- section with the help of Respondent No.7. After the surgery, the Petitioner complained that she couldn't move her legs. The duty doctor immediately informed Respondents No.5 to 7 who examined the patient. Respondent No.8 further submitted that a neurologist, Dr Javaid Iqbal, was also engaged who visited the Petitioner daily. He advised her to stay at the hospital for proper neuro care, but her family refused and sought her discharge which was done on 09.11.2019. Respondent No.8 denied the allegations of maladministration, malpractice and medical negligence levelled by Muhammad Nazim. He added that doctors monitored her around the clock when the Petitioner was in the hospital. Besides, Respondents No.5 to 7 paid her daily visits. 5. Respondents No.5 to 7 also submitted their replies on the above lines. 6. After preliminary proceedings, the Commission recorded the parties' evidence and sought opinions from one neurologist and two anaesthesia experts. Importantly, original operation notes were not available in the patient file. Subsequently, Dr Atiqa Irshad made duplicate notes on the advice of the PCH's Administrator (Respondent No.8) and the Consultant Gynecologist (Respondent No.5). Healthcare Commission's order dated 01.11.2021 7. The Commission decided the Petitioner's complaint by order dated 01.11.2021 in the following terms: (i) The decision of the Consultant Gynecologist (Respondent No.5) was justified in performing C- section on the Petitioner. (ii) The exact cause of severe Radicylopathy-plexopathy of the lumber area developed by the Petitioner could not be established according to the duplicate clinical notes. (iii) The question as to whether Respondents No.6 & 7 had committed medical negligence, and if so, to what extent in administering epidural anaesthesia to the Petitioner requires further probe. Therefore, their cases be sent to the Pakistan Medical Commission for proceeding in accordance with the law. (iv) On 08.06.2021, the Commission inspected PCH and found that its score on the Minimum Service Delivery Standards Table (MSDS Table) was only 37% which is unacceptable. Therefore, the Commission imposed a fine of Rs.300,000/- on it. Twenty per cent of that amount, when recovered, shall be paid to the Petitioner. (v) PCH is directed to improve its score on the MSDS Table up to 70% within three weeks, failing which necessary action shall be taken in accordance with the law. 8. Respondent No.8 filed an appeal on behalf of PCH against the Commission's order in the Court of the District Judge, Faisalabad, which was dismissed on the ground of limitation vide judgment dated 12.10.2022. Reportedly, the PCH has deposited the penalty of Rs.300,000/- imposed on it. 9. The Petitioner also partially challenged the Commission's order but the District Judge, Faisalabad, dismissed it by judgment dated 12.10.2022 for lack of jurisdiction. 10. Respondents No.6 and 7 did not assail the Commission's order dated 01.11.2021. They are facing proceedings before the Pakistan Medical Commission (PMC). The District Judge's judgment dated 12.10.2022 on the Petitioner's appeal 11. In her appeal before the District Judge, the Petitioner contended that Respondents No.5 to 8 removed, or caused to be removed, the original operation notes from her file to screen themselves of civil and criminal liability. They had thus committed an offence under section 201 PPC. The Commission was, therefore, required under section 26(2) of the PHC Act to direct registration of FIR against them. Secondly, the Commission had erred in exonerating Respondent No.5. Thirdly, the
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Commission was obliged to declare the doctors (Respondents No.5 to 7) guilty of medical negligence before referring their case to the PMC. Fourthly, the fine imposed on PCH was disproportionate to the offence which it had committed. It should, therefore, be enhanced from Rs.300,000/- to Rs.500,000/-. Lastly, PCH should be sealed and banned from providing any healthcare facilities. 12. The District Judge held that section 31 of the Punjab Healthcare Commission Act 2010 (the "PHC Act") provides appeals against five kinds of orders only. The Petitioner's appeal is beyond the purview of that section. In particular, no appeal lies against the Commission's order fixing responsibility upon any delinquent and for enhancement of fine. Accordingly, the Judge dismissed the Petitioner's appeal as being not maintainable. He relied upon the following two unreported judgments of this Court for his holding: (i) Haseeb Ullah and another v. District & Sessions Judge and others (Writ Petition No.227659/2018); (ii) Dr. Muhammad Dilawaiz Mujahid v. Punjab Healthcare Commission etc. (Writ Petition No.48460/2019). The submissions 13. The Petitioner's counsel, Mr Ghulam Mustafa Sabir, Advocate, contends that the District Judge has misconstrued the law while dismissing the Petitioner's appeal by judgment dated 12.10.2022. Section 31 of the PHC Act is not a standalone provision. It has to be read in conjunction with section 30 which makes all the orders issued by the Commission amenable to the appellate jurisdiction of the District Judge. He prays that the matter be remanded to him for a decision on merits. 14. Mr Sabir submits that the Petitioner is partially aggrieved by the Commission's order of 1st November. Even if it is assumed that her appeal before the District Judge was not competent, this Court has ample jurisdiction under Article 199 of the Constitution to issue a writ of certiorari to correct the errors in the said order. The Petitioner cannot be left without a remedy. She has urged all those grounds in this petition for the modification of the Commission's order which she raised in her memorandum of appeal before the District Judge (see paragraph 11 of this judgment). 15. The Commission has submitted a para-wise reply to this petition. It has defended its order dated 01.11.2021 with full force and contends that it fully meets the ends of justice. It states that it provided the parties a fair opportunity to prove their respective claims and also sought expert opinions from the people of the relevant fields for a just and correct decision. It did not find Respondent No.5 had committed any medical negligence, so it exonerated her but deemed it proper to send the cases of Respondents No.6 & 7 to the PMC for further proceedings. The Commission has taken action against Respondents No.6 & 7 under section 26(2) of the PHC Act. 16. According to the Commission, it thoroughly probed the issue of the loss of the Petitioner's original operation notes. It found that they were misplaced and not destroyed by PCH, as the Petitioner claimed. Subsequently, duplicate notes were prepared by Dr Atiqa Arshad. In these circumstances, it did not have to invoke section 26(2) of the PHC Act to direct registration of FIR under section 201 PPC. 17. Mr Sittar Sahil, Assistant Advocate General, contends that the Commission's order dated 01.11.2021 and the District Judge's judgment dated 12.10.2022 on the Petitioner's appeal are well reasoned and do not call for interference by this Court in its constitutional jurisdiction. 18. Mr Salah-ud-Din Siddiqui, Advocate, submits that Respondents No.5 to 7 are distinguished doctors and experts in their respective disciplines. They have not committed any medical negligence for which they may held accountable. He has produced copies from various medical reference books to support his claim. Nevertheless, the Commission had exonerated Respondent No.5 only and referred the cases of Respondents No.6 & 7 to the PMC. Following the enactment of the Pakistan Medical and Dental Council Act 2022 ("PMDC Act of 2022"), these cases are now pending with the Council's disciplinary committee.[1] Mr Siddiqui contends that the Act of 2022 provides a comprehensive procedure for dealing with complaints of professional negligence
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against medics. This Court has no jurisdiction to interfere in the matter under its constitutional mandate. It cannot declare Respondents No.5 to 7 guilty of medical negligence as the Petitioner wishes. 19. Mr Zulfiqar Ali Kamboh, Advocate, submits that PCH has deposited the penalty imposed on it by the Commission and improved its MSDS score as required. He contends that the Commission exercised its jurisdiction legally and reasonably while imposing the aforesaid penalty. This Court cannot enhance it while exercising constitutional powers under Article 199. Opinion 20. In 2008, the Government of the Punjab initiated efforts to regulate the healthcare delivery system in the province. For this purpose, it got in touch with the stakeholders and also hired consultants. In the meantime, an incident occurred in Lahore in which a baby girl named Imanae Malik allegedly died because of medical negligence. There was a huge public outcry upon which the then Chief Justice of the Lahore High Court took suo motu notice. Subsequently, Writ Petition No.23796/2009 was also filed. One of His Lordship's orders passed in those proceedings was challenged before the Supreme Court of Pakistan in CPLA No.2510/L/2009 (titled: "Doctors Hospital (Private) Ltd. etc. v. Government of the Punjab etc.") which was heard on 30.12.2009. The learned Bench voiced serious concerns about the lack of a regulatory mechanism to monitor the licensing and accreditation of the privately-run hospitals and to ensure a minimum standard of quality of services, which it also recorded in its order of that date. Against this backdrop, the Punjab Assembly enacted the PHC Act. The Commission has been established under section 3 thereof. 21. Section 4(1) of the PHC Act empowers the Commission to perform such functions and exercise such powers as may be required to improve the quality of healthcare services and clinical governance and ban quackery. Section 4(2) outlines some of those functions, which inter alia include: (a) maintain a register of all healthcare service providers; (b) grant, revoke and renew licenses to persons involved in the provision of healthcare services and to vary terms and conditions and purposes of the licences; (c) monitor and regulate the quality and standards; (e) enquire and investigate maladministration, malpractice and failures in the provision of healthcare services and issue consequential advice and orders; (g) impose and collect penalties on violation, breach or non compliance of the provisions of the rules, regulations, standing orders and instructions issued under this Act; (o) issue regulations, guidelines, instructions and directives to persons involved in the provision of healthcare services; (p) grading of the healthcare establishments; 22. Section 4(7) of the PHC Act stipulates that, notwithstanding the provisions of any other legislation, the Commission may conduct an investigation on the complaint of an aggrieved person or a healthcare service provider.[2] However, it must do so if the Government or the Punjab Assembly makes a reference, or the Supreme Court of Pakistan or the Lahore High Court directs it during any proceedings. Section 4(8) empowers the Commission to take cognizance of any incident involving the harassm ent of a healthcare service provider or damage to a healthcare establishment[3] and then refer the matter to the appropriate legal authority for further action. 23. As per Regulation 6 of the Punjab Healthcare Commission Complaint Management Regulations, 2014 (the "2014 Regulations"), the Commission has jurisdiction over all complaints regarding medical negligence, maladministration, malpractice or failure to provide healthcare services. Section 2(xxii) of the PHC Act, read with section 19, defines "medical negligence," while Regulation 2 describes "maladministration," "malpractice," and "neglect." Section 28 of the PHC Act empowers the Commission to impose fines up to Rs.500,000/- for violations of the Act and "healthcare
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establishment" means a hospital, diagnostic centre, medical clinics, nursing home, maternity home, dental clinic, homeopathy clinic, Tibb clinic, acupuncture, physiotherapy clinic or any other premises or conveyance- (a) wholly or partly used for providing healthcare services; and (b) declared by the Government, by order published in the official Gazette, as a healthcare establishment; the rules and regulations made thereunder, keeping in view the gravity of the infraction. Thus, the Commission performs a dual function: on the one hand, it acts as a regulator, and on the other, it decides on issues involving patients' rights and obligations, as well as those of healthcare service providers and healthcare establishments. 24. On 18.11.2022, the Petitioner filed a complaint with the Commission through her Special Attorney, Muhammad Nazim, against PCH (Respondent No.4) and its doctors (Respondents No.5 to 7) and the administrator (Respondent No.8). The Commission decided it by order dated 01.11.2021 in the terms mentioned in paragraph 7 of this judgment. The Petitioner was partly dissatisfied with that order, so she preferred an appeal before the District Judge. The first question that arises for consideration is whether it was maintainable. Sections 30 and 31 of the PHC Act are relevant for the discussion which I reproduce below for ready reference: 30. Bar of jurisdiction.- Save as provided in this Act, no court other than the Court of the District and Sessions Judge shall have jurisdiction- (a) to question the validity of any action taken, or intended to be taken, or order made, or anything done or purporting to have been taken, made or done under this Act; or (b) to grant an injunction or stay or to make any interim order in relation to any proceeding before, or anything done or intended to be done or purporting to have been done by, or under the orders or at the instance of the Commission. 31. Appeal.- (1) A person who is aggrieved by the- (a) refusal of the Commission to issue or renew a license; (b) decision of the Commission to suspend or revoke a license; (c) order of closing down of a healthcare establishment or making improvements in the healthcare establishment; (d) order relating to equipment, apparatus, appliances, or other things at a healthcare establishment; or (e) imposition of a fine by the Commission. may, within thirty days from the date of communication of the order of the Commission, prefer an appeal in writing to the District and Sessions Judge. (2) The healthcare service provider shall provide legal aid to a person, working in the healthcare establishment, pertaining to the matters related to this Act. 25. It is well-settled that the right to appeal is a substantive privilege established by law[4] and must be expressly provided by the statute.[5] It cannot be implied.[6] A bare perusal of section 31 of the PHC Act reflects that the right of appeal under the enactment is limited to five types of orders passed by the Commission. Section 30 merely mentions the bar of jurisdiction. It states that no court other than the Court of the District and Sessions Judge has the authority to question the legality of any action taken, order made or thing done under the PHC Act, or to grant an injunction, or stay or to issue an interim order in relation to any proceedings initiated by the Commission. Section 30 does not confer any new appellate powers on the District and Sessions Judge or otherwise broaden the scope of section 31. The judgments passed by this Court in the unreported cases of Haseeb Ullah and Dr. Muhammad Dilawaiz Mujahid[7] fully support this view. 26. Clause (e) of section 31(1) of the PHC Act grants the right of appeal to a person aggrieved by the order of the Commission imposing a fine. This provision cannot be stretched to provide for an appeal in cases where a fine is denied or to enable an appeal for increasing the amount of a fine.
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The rule stated by Tindal C.J. in Sussex Peerage Case [1844] 11 Clark and Finnelly 85, 8 ER 1034, still holds the field and is followed by the courts in all countries. He said: "The only rule for the construction of Acts of Parliament is that they should be construed according to the intent of the Parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do in such case, best declare the intention of the lawgiver. But if any doubt arises from the terms employed by the Legislature, it has always been held a safe means of collecting the intention, to call in aid the ground and cause of making the statute and to have recourse to the preamble, which, according to Chief Justice Dyer (Stowel v Lord Zouch, Plowden, 369), is 'a key to open the minds of the makers of the Act, and the mischiefs which they intended to redress'." 27. Flex Frank writes:[8] "Whatever temptations the statesmanship of policymaking might wisely suggest, construction must eschew interpolation and evisceration. [The judge] must not read in by way of creation." 28. Mr Sabir could not persuade me that the District Judge's judgment dated 12.10.2022 dismissing the Petitioner's appeal is erroneous. Hence, I uphold it. 29. The Commission's order dated 01.11.2021 is quasi-judicial and is, therefore, susceptible to judicial review. However, before attending to the case at hand, let's look at the breadth of that power. 30. The ancient supervisory jurisdiction of judicial review, which Blackstone's Commentaries refer to as a "very high and transcendent" jurisdiction, was an inherent jurisdiction exercised by the superior courts through the common law prerogative writs of habeas corpus, mandamus, prohibition, certiorari and quo warranto. These ancient prerogative writs derive their name from their historical association with the King's prerogative, which empowered the monarch as the fountain of justice to oversee the due enforcement of the law by government officials and tribunals. [9] 31. The King's Bench Division in England exercises supervisory jurisdiction when issuing the writ of certiorari (which literally means "to be certified" or "to be more fully informed"), and by means thereof, it calls for the records and proceedings to examine their legality. The following are the grounds on which it would interfere: (i) absence or excess of jurisdiction, (ii) breach of rules of natural justice committed by the tribunal during the proceedings, and (iii) an error of law apparent on the face of the record.[10] According to Brohi, if a tribunal assumes jurisdiction following the determination of a question of fact (known as jurisdictional fact in America) the existence of which has been made a condition precedent for the exercise of the tribunal's jurisdiction by the statute, the superior court will review the finding of the fact to ascertain whether the tribunal has properly acquired jurisdiction.[11] 32. Basu states that there has been a significant transformation in the judicial perspective regarding the writ of certiorari since the pivotal House of Lords decision in Ridge v. Baldwin, (1964) AC 40. Before that case, there was a widespread consensus that certiorari did not lie against purely administrative functions when the relevant statute imposed no duty to proceed judicially.[12] However, in Ridge's case, the House of Lords, by a majority, held that even when the enactment did not specify any judicial procedure for the performance of an administrative function, the law implied an obligation to act in accordance with the principles of natural justice if the exercise of the statutory power affected an individual's rights or determined "what the rights of an individual should be."[13] 33. In Council of Civil Service Union v. Minister (1984) 3 All ER 935, Lord Diplock observed that the law has developed to the point where one can easily categorize the grounds for judicial review of administrative action under three headings. He called the first ground "illegality," the second "irrationality," and the third "procedural impropriety." However, he emphasized that the ongoing
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development, which is on a case-by-case basis, may add further grounds in the future. "I have in mind particularly the possible adoption in the future of the principle of 'proportionality', which is recognized in the administrative law of several of our fellow members of the European Economic Community." Lord Diplock explained: " 'illegality' as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable. "By 'irrationality' I mean what can by now be succinctly referred to as "Wednesbury unreasonableness" (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it ... "I have described the third head as 'procedural impropriety' rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice." 34. The High Courts in Pakistan were granted the power to issue writs for the first time in 1954 when the Government of India Act, 1935, which served as the country's Constitution at that time, was amended and section 223-A was inserted. Since then, the High Courts have exercised that authority under succeeding constitutional dispensations. The Constitution of 1956 replaced the 1935 Act. Article 22 of that Constitution, on the one hand, granted citizens the right to petition the Supreme Court for the enforcement of fundamental rights through appropriate proceedings. On the other, it empowered the Supreme Court to…
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