Appeals from the Medical Council can take place only if it concerns the cancellation of a medical practitioner ‘s registration. This was decided in a judgement delivered on 10 August 2020 in Dr Mario Saliba -v- Il-Kunsill Mediku. The Court of Appeal was presided by Chief Justice Mark Chetcuti, and judges Giannino Caruana Demajo and Anthony Ellul.
Dr Saliba appealed from a decision of the Medical Council, which held that an enquiry it was holding was not time barred, in terms of Article 31(2) of the Health Care Professions Act.
The Medical Council in its decision of 3 September 2019, gave the timeline of the case. It quoted from Article 31 of he Health Care Professions Act, which reads:
“ 31.(1) The relevant Council shall have the power, either on the complaint of any person or of its own motion, to investigate any allegation of professional misconduct or breach of ethics by a health care professional falling under its supervision.
(2) Any inquiry under sub-article (1) into the misconduct or other failure in terms of article 32(1)(b) and (c) shall be barred by the lapse of two years which shall run from the day from which the complainant or any of the complainants become or ought to have become aware of the facts or incidents that give rise to the complaint and in any case by the lapse of ten years from the date on which the alleged fact or incident was committed.
(3) The period of limitation referred to in sub-article (2) maybe interrupted by any act of the inquiry served on the party being investigated.
(4) For the purposes of the foregoing provisions of this article, the relevant Council shall conclude the inquiry within a period o ftwo years from the day on which any act of the inquiry proceedings is served on the party accused in respect of the fact or incident with which he is charged, except where the delay is occasioned through no fault of the relevant Council”
The law clearly puts a 2 year time limit for the Council to investigate allegations of professional misconduct. In this particular case there was a complaint in May 2018 and therefore, the Medical Council was in its right to investigate this complaint and it was not time barred.
The doctor appealed from this decision. However, the Medical Council argued that held that the appeal was null because he did not quote the law under which the enquiry was time barred. The Court of Appeal disagreed, because it was clear that the Doctor was appealing in terms of Article 31 of the Health Care Professions Act and therefore, this plea was being flatly turned down.
The second plea that was raised by the Medical Council was that the appellant could not file an appeal, because it did not concern his cancellation from the Medical Council’s Register. From a close look at the law, the Court held that an appeal was allowed only in cases where there are decisions of cancellation from the Medical Council’s Registry. This was echoed in Dr Franco Mercieca -v- Kunsill Mediku decided on 28 April 2014 and Dr Adam Bartolo -v- Kunsill Mediku decided on 14 October 2016.
It is clear from the decision taken by the Medical Council that it was not cancelling the Dr Saliba’s name from the Registry. The decision given by the Medical Council concerned a plea that the enquiry was time barred and such decision do not give rise to an appeal before the Court of Appeal.
The Court of Appeal then moved to reject the appeal.
Av Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
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