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Petitioner: Punjab Healthcare Commission VS Respondent: Mushtaq Ahmad Chaudhary etc
Court Name: Lahore High Court Judge(s): Ayesha A. Malik Title: Punjab Healthcare Commission vs Mushtaq Ahmad Chaudhary etc Case No.: WP No.32150 of 2015 Date of Judgment:2018-07-06 Reported As: 2019 [M] C.L.R. 1462, PLD 2018 Lahore 762, 2018 LHC 1511, PLJ 2018 Lahore 984 Result: Petition dismissed
Judgment Ayesha A. Malik J: The instant petition filed by the Punjab Healthcare Commission challenges order dated 16.10.2015 issued by Respondent No.2, District and Sessions Judge, Toba Tek Singh whereby the sealing order against the clinic of Respondent No.1, Mushtaq Ahmad Chaudhary was set aside and it was held therein that the Punjab Healthcare Commission ("Commission ") did not have any power under the Punjab Healthcare Commission Act, 2010 ("Health Act") to seal a healthcare establishment. In the first round the case was heard on 20.11.2015 and a judgment was rendered by a learned Single Judge of this Court holding therein that the action of sealing a healthcare establishment is without any backing of law, hence without lawful authority . Accordingly the order passed by the District and Sessions Judge, Toba Tek Singh dated 16.10.2015 was upheld. This judgment was challenged before the august Supreme Court of Pakistan in C.A 213/2016 & C.M.A 816/2016, C.A 214/2016 & C.M.A 818/2016 & C.Ps 768, 997 & 998 of 2016 wherein with the consent of the parties the following order was passed on 14.2.2017: Both the Appeals are allowed and the cases are remanded to the learned High Court to be tagged and heard alongwith Writ Petition No.2427/2017, filed by the Respondents challenging the vires of the Punjab Health Care Commission Act, 2010. The learned High Court will hear the parties and decide the matter in accordance with law . 2. The instant petition was being heard along with two other petitions. Firstly WP No.31831/2015 filed by the Punjab Dental Practitioners Association wherein it is prayed that the Commission should not illegally harass the members of the Association and it seeks a declaration that all persons registered under the Unani Ayurvedic and Homoeopathic Practitioner Act, 1965 ("Unani Act") be authorized to practice as dental technicians and dental hygienists, if they possess the appropriate diploma by the Skill Development Council. The second petition being WP No.2427/2017 is also filed by the Punjab Dental Practitioners Association and Mushtaq Ahmad Chaudhary. In this petition, the vires of the Health Act have been challenged essentially on the ground that the Provincial Government is not competent to legislate on the subject of healthcare. The aforementioned three petitions are
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being heard as per the remand order, along with connected matters being WP Nos.28593/15, 21753/15, 19597/15, 38582/15, 79690/17, 11158/16 and 30210/16 (Details given in Schedule "A"). Essentially all these petitions either challenge the vires of the Health Act or challenge the act of sealing healthcare establishments by the Commission. In some petitions a declaration is sought against the Respondents from stopping the Petitioners from practicing as Hakeem or Homoeopathic doctors or in terms of their registration under the Unani Act. 3. In terms of the above, there are two main issues before this Court; (i) vires of the Health Act and (ii) whether the Commission has the power to seal healthcare establishments under the Health Act. Vires of the law The arguments 4. Mr. Mohammad Ahmad Qayyum, Advoc ate for the Dental Association and Mushtaq Ahmed Chaudhary explained that the Petitioners are qualified and registered under the Unani Act. That they are carrying out their lawful business in the field of traditional medicine, essentially as tibbs and homoeopaths, yet are being unlawfully harassed by the Commission. He argued that the Petitioners are regulated under the Unani Act, which essentially falls within the subject of medical profession . He argued that the Provincial Government is not competent to legislate on matters related to medical profession . He argued that in terms of Entry 11, Part 2 of the Federal Legislative List ("FLL"), the subject of legal, medical and other professions falls within the domain of the Federal Government, meaning thereby that only the Federal Government can legislate and regulate the medical profession. He further argued that the Health Act attempts to regulate the medical profession, hence it is ultra vires to the Constitution of Islamic Republic of Pakista n, 1973 ("Constitution "). Further that it requires all medical practitioners to register with the Commission which is against the law as the Petitioners as with other medical practitioners are registered under a federal law, hence are not liable to register under a provincial law. The learned counsel contended that the Petitioners are also dental technicians and dental hygienists duly qualified from Skill Development Council and therefore competent to practice as dental hygienists or technicians. However , the Commission is creating hurdles in the way of the Petitioners from practicing as dental hygienists or technicians and as tibbs and homoeopaths. In this regard the Commission requires registration of the Petitioners under the Health Act irrespective of the registration under the Unani Act. Learned counsel stated that in the event that a practitioner is not registered with the Commission, it can at best impose a penalty , yet in these cases the Respondents have resorted to illegally sealing the establishm ents of the Petitioners. Learned counse l argued that the Respondents have initiated a crackdown on quackery and have included the clinics of the Petitio ners who are not quacks, rather they are qualified dental technicians and dental hygienists as well as homoeopaths and tibb. Learned counsel further argued that the Respondents have failed to take into consideration that the Petitioners are qualified and duly registered with their respective Councils under the Unani Act, meaning thereby that they are not quacks. He argued that non-registration under the Health act does not qualify as being a quack and that the Respondents have no authority to interfere in the lawful business of the Petitioners. Consequently , the Petitioners seek a declaration that they be allowed to practice if they are registered under the Unani Act and have the appropriate diploma by the Skill Development Council, as additional qualification. 5. On behalf of the Commission, Khawaja Issam Bin Haris, Advocate argued that the Health Act was promulgated with the mandate to improve healthcare services and ban quackery . This subject, he argued falls squarely within the competence of the Provincial Government as healthcare services do not fall within the federal subject of medical profession . Learned counsel argued that the Petitioners' case is based on the false assumption that the medical profession is wide enough to cover and regulate healthcare services or healthcare establishments. He argued that the falsity of this assumption is apparent from the constitutional history on the subject of medical profession which has been a distinct subject from public health, sanitation, hospitals and dispensary which was always within the provincial domain. The former regulates the individual while the latter regulates the health care environment. Further that even with the widest of definitions the phrase medical profession cannot include healthcare services, the service provider or the establishment. Learned counsel explained that the Health Act regulates healthcare services, healthcare service providers and healthcare establishments and therefore calls for registration and licensing by the same. In such a situation, it may be that a healthcare service provider or
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establishment is a qualified doctor or as in the cases before the Court a homoeopath or tibb. However , since the doctor , homeopath or tibb is running a clinic or hospital or a diagnostic centre, as the case may be, then such an establishment will fall under the definition of a healthcare establishment and healthcare service provider which requires registration and licensing under the Health Act. He argued that such an overlap if any with the Unani Act does not render the law unconstitutional. Therefore it is his case that the Health Act is in accordance with the Constitution as the Provincial Government is competent to legislate on the subject matter. Reliance is placed on Inamur Rehman v. Federation of Pakistan and others (1992 SCMR 563), Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary M/o Finance, Islamabad and 6 others (PLD 1997 SC 582) and Syed Aizad Hussain and others v. Motor Registration Authority and others (PLD 2010 SC 983) in furtherance of the point that the Court shall interpret in favour of the constitutionality of a statute. 6. On behalf of the Provincial Government, Mr. Anwaar Hussain, Additional Advocate General argued that there is always a presumption in favour of the constitutionality of a statute unless the statute is not declared to be unconstitutional, which situation only arises if there is no way of reconciling or harmonizing the statute with the Constitution. In the instant cases, the subject of healthcare falls within the domain of the Provincial Government and requires the Provincial Government to legislate. Learned Law Officer further argued that historically the matter has always been with the Provincial Government and he agreed that the subject medical profession does not include healthcare services, service provider or establishment. He argued that if a medical professional or in this case a homoeopath or tibb is in the business of providing healthcare services then the services provided along with the establishment where the services are provided all fall within the domain of Provincial legislation. He explained that the intent of the Constitution is clear , such that the profession is regulated at the federal level, to maintain uniformity in education, training and standards throughout the country but the service provider and the establishment is regulated through Provincial legislation in order to ensure that the federal standards are maintained and public health is protected . He argued that in pith and substance the Health Act aims to improve performance and quality of healthcare and consequently prevents quackery . Consequently all service providers and establishment have to be regulated at a Provincial level and cannot be regulated at a federal level. 7. On behalf of the Federal Government, Mr. Nasar Ahmad, Deputy Attorney General argued that the primary function of the Health Act is to improve the quality of healthcare services, clinical governance and to ban quackery in the Punjab. The Commission is empowered to take all necessary steps to fulfill the mandate of the law. He argued that a bare reading of the Health Act shows that the objective of the law is to regulate healthcare services and not the profession. He further argued that Federal legislature regulates the profession, meaning thereby that it regulates the practitioner or the education and not hospitals, clinics, dispensaries, allied staff, essentially the entire ambit of the healthcare environment. He further argued that the requirement of registration under the Health Act is not violative of the Constitution as the Federal Government seeks registration of medical professionals whereas the Commission seeks registration and licensing of the healthcare service provider and the healthcare establishment. Hence there is no overlap or conflict. He also argued that the healthcare is a broader subject whereas the medical profession is a more concise subject and does not include healthcare. The law 8. The law under challenge is the Health Act. In terms of the preamble of the Health Act, the mandate of the law is to improve the quality of healthcare services and to ban quackery in all its forms and manifestation and to provide for ancillary matters. Section 4 of the Health Act provides for the functions and powers of the Commission, which includes the function to improve the quality of healthcare services and clinical governance and to ban quackery . Sub-Section 2 of Section 4 of the Health Act provides that the Commission has all the powers it requires in furtherance of this function. Section 2 (xv) defines healthcare establishment to mean 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. Section 2 (xvi) defines healthcare services to mean services provided for diagnosis, treatment or care of persons suffering from any physical or mental disease, injury or disability including procedures that are similar to forms of medical, dental or surgical care but are not provided in connection with a medical condition and includes any other service notified by the Government. Section 2 (xvii)
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provides for healthcare service provider to mean an owner , manager or incharge of a healthcare establishment and includes a person registered by the Pakistan Medical and Dental Council ("PNMC "), Council for Tibb, Council for Homeopathy or Nursing Council. Section 13 of the Health Act calls for registration of the healthcare service provider and Section 14 calls for licensing of a healthcare establishment. Section 19 of the Health Act provides that a healthcare service provider can be guilty of medical negligence if it does not have the required human resource and equipment, which it professes to have or if its employees do not have reasonable competency or skill that they possess. Section 20 of the Health Act requires the Commission to set standards for healthcare services and under Chapter-V , the Commission can inspect any healthcare establishment as per the procedure laid down. 9. In terms of the provisions of the Health Act and its preamble, the Health Act regulates healthcare which essentially is the provision of services related to treatment, diagnosis and care including procedures, processes involved in the diagnosis, treatment and care. Consequently , the Health Act regulates the healthcare service provider being the person who is responsible for the provision of the services and the healthcare establishment being the space within which such services are provided such as a hospital, diagnostic centre, medical clinic, nursing home, maternity home, dental clinic, homeopathy clinic, tibb clinic and so on. Therefore the question that arises is what is healthcare and clinical governance and whether healthcare falls within the subject of medical profession. Opinion 10. The Health Act regulates the healthcare environment which includes regulating the service provider , the establishment and the services. The Commission is mandated to ensure that all those in the business of providing healthcare are following the prescribed standards and are working towards improving the health of the people. Section 4 of the Health Act provides that the Commission shall improve the quality of healthcare and clinical governance. Neither healthcare nor clinical governance are defined under the Health Act as they are evolving concepts which cover the entire spectrum of the healthcare environment. Healthcare in its simplest of understanding is the maintenance or improvement of health through diagnosis, treatment, testing and will include all procedures and manner of care undertaken for the treatment or care of persons suffering from any physical, mental or emotional injury or disability . Clinical governance is the creation of a system to ensure that optimum quality of healthcare is given to everyone. The term was used for the first time by the World Health Organization ("WHO ") in 1983 to encapsulate the provision of high quality healthcare on four important dimensions; professional performance, risk allocation, risk management and patient satisfaction. Over time this concept evolved to mean a system which is responsible, accountable and provides qualitative services and establishments, providing the highest standards of care to people. It essentially puts the principles of good governance in healthcare so as to ensure that all those involved in healthcare, the service provider , the establishment and those providing services are efficient, effective, responsive and accountable. Consequently the Commission addresses complaints, undertakes inspections and investigation s to check poor performance, negligence and compromise in standard. Hence the primary function of the Commission under the Health Act is to govern the healthcare environment to maintain quality , safety and ensure that optimum level of care is experienced by the people. 11. In this context healthcare services cover a broad spectrum, involving the process and procedures, the medicine and staff involved in diagnosis, treatment and care. It is therefore not limited to just the practitioner, but instead covers the entire establishment which includes the staff, the equipment, the establishments and all the services provided there. It also takes into its fold persons who own, manage or run the establishment where the services are provided. This is necessary to ensure that persons who are in the business of healthcare take full responsibility of their involvement in the provision of healthcare. Therefore healthcare covers a broad spectrum of services and people, all of whom have a role to play in delivering quality healthcare. This includes amongst others administrators, technicians, nurses, pharmacists, therapist, assistances Lab technicians, sonographers, radiologists, dental technician, dental hygienists. A wide range of regulatory bodies and system will therefore regulate the healthcare environment, at all levels, federal, provincial and even local. Essentially the regulatory framework is geared to protecting public well being and health. Therefore, the argument that healthcare regulations are limited to the federal legislature is totally misconceived.
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12. When seen in the context of the constitutional history of Pakistan, medical profession and public health, sanitation, hospitals and dispensaries have been two separate and distinct legislative subjects. Under the 1956 Constitution the subject of medical profession was included in Entry 1 of the Concurrent Legislative List ("CLL") and public health, sanitation, hospitals and dispensaries was Entry 26 of the Provincial Legislative List ("PLL"). Under the 1962 Constitution, neither the subject of medical profession nor public health figured in the Third Schedule to the Constitution which provided for matters falling in the executive domain of the Federation and enumerated the powers of the Federal legislature. Therefore, the subject of medical profession and public health fell within the domain of Provincial legislature under the 1962 Constitution. Under the interim Constitution of 1972 medical profession was again included in the CLL thereby empowering the Federal as well as Provincial legislatures to make laws regarding the same whereas public health, sanitation, hospitals and dispensary figured in Entry 30 of the PLL giving exclusive powers to the Provinces. So far as the 1973 Constitution, prior to the 18 Amendment medical profession was Item 43 in the CLL and the subject of public health was neither in the FLL nor in the CLL, hence fell within the domain of the Provincial Government. After the 18 Amendment, medical and legal profession is found in Entry 11, Part 2 of the FLL being a federal subject and since the subject of public health, sanitation, hospitals and dispensary is not included in the FLL it means that this subject falls within the domain of Provincial government. Therefore, in terms of constitutional history, medical profession and public health, sanitation, hospitals and dispensary are two different and distinct subjects. Furthermore, it shows that the constitutional mandate requires the medical profession be governed by the Federal law and matters related to public health, sanitation, hospitals and dispensary be regulated by the Provinces. 13. When seen in the context of its meaning there is sound logic in the fact that the subject of legal and medical profession is a federal subject. The subject regulates educational qualifications and requires uniformity of standards in training and qualification for the purposes of education and for the purposes of entry into the profession. In this regard, the Punjab Medical and Dental Council Ordinance, 1962 ("1962 Ordinance") regulates the minimum standards of higher educational qualification in medicine and dentistry. The law as amended from time to time essentially recognizes medical institutions as well as medical and dental qualifications. It recognizes hospitals or institutions for house jobs internship or foundation courses. It recognizes all medical and dental qualifications whether obtained in Pakistan or outside of Pakistan. It calls for the registration and licensing of medical and dental practitioners and all matters related to the establishment and running of medical and dental institutions including its recognition are regulated by the PMDC. Hence any person professing to be a medical or dental practitioner must be recognized, registered and licensed with the PMDC under the 1962 Ordinance. Various different regulations have been issued under the 1962 Ordinance including the Regulations titled Pakistan Registration of Medical and Dental Practitioners Regulations, 2008 ("Regulations"). In terms of these Regulations, compilation, maintenance and publication of registers which contain the registration of medical and dental practitioners are maintained as well as processes for removal of names from the registers. It provides for the procedure of filing a complaint against a medical or dental practitioner and provides for the procedure to be followed in such complaints. The 1962 Ordinance therefore, governs the medical and dental profession meaning thereby that it governs the individual who is qualified to practice as a doctor or dentist in Pakistan. It also regulates the institution from which the professional degree for qualifying as a doctor or dentist is obtained. The 1962 Ordinance does not regulate any of the healthcare services or establishments which will be used by the medical or dental practitioners during the process of providing medical or dental services. Hence the 1962 Ordinance clearly does not regulate clinics, dispensaries and diagnostic centres or testing procedures or any other related area which forms part of the ambit of healthcare services as defined under the Health Act. 14. The practice of Unani, Ayurvedic and Homoeopathic system of medicine are essentially traditional or alternate medicine which are popular within the country and play a significant role in provid ing healthcare to a large part of the population. Each system of medicine has its own unique characteristics and basis on which it provides cure and promotes good health. The argument of the Petitioners is that they are governed by the Unani Act which essentially means that their services along with their qualifications are regulated under the said Act. In order to appreciate thisth th
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argument, it is necessary to examine the objective and mandate of the Unani Act. In terms of its preamble, it is an Act to regulate the qualifications and to provide for the registration of practitioners of Unani, Ayurvedic and Homoeopathic system of medicine. The Unani Act provides for a National Council for Tibb and National Council for Homoeopathy . The function of the Council as per Section 14 is to consider applicat ions for recognition made by the institutions imparting or desiring to impart instruction in the system of medicine with which the Council is concerned. The Council also maintains adequate standards of education in recogn ized institutions and call for the registration of duly qualified persons. Teaching institutions and examinations are regulated under Chapter-II of the Unani Act and the registration of practitioners is provided for under Chapter-III. In terms of Section 24, every person who passes the qualified examination in the Unani, Ayurvedic or Homoeopathic system of medicine from a recognized institution must be registered in the respective register. Essentially there is a separate register for each system of medicine being Unani, Ayurvedic or Homoeopathic, hence practitioners of each system of medicine are required to be registered accordingly. Section 33 of the Unani Act provides for the privileges of a registered practitioner which entitles them to hold any appointment as physician or medical officer in any Unani, Ayurvedic, Homoeopathic dispensary, hospital, infirmary or as the case may be. It also allows them to vote for the election of members…
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