The Supreme Court decision on 21 September, upholding the decision of the Court of Appeal ruling on 31 January 2017 which directed the Sri Lanka Medical Council (SLMC) to register a MBBS graduate of the South Asian Institute of Technology and Medicine (SAITM) as a medical officer of the State, presented relief to masses who were subjected to political thuggery by the Government Medical Officers Association (GMOA).
The decision was made in response to a petition made by a medical graduate of SAITM, under Section 29(2) of the Medical Ordinance. The judgment questions the roles played by the SLMC and GMOA particularly its president Dr. Anuruddha Padeniya in addition to the actions/inactions of the Government.
Court of Appeal ruling on 31 September 2017
The case was based on petitions submitted by two SAITM graduates who were awarded MBBS degrees by SAITM in June 2016 against the SLMC, SAITM and others. The petitioners had been refused registration as medical practitioners by the SLMC. Following are extracts from the judgement.
It was pointed out that Section 137 of the Universities Act published: “Guidelines for obtaining degree awarding status for State and Non-State Higher Educational Institutes.” The act was not presented to the Parliament.
In any event, in the said guidelines, it is specifically stated inter alia that,
- “In the case of study programs in medical sciences, the teaching hospital to which the students have access and provided with clinical training must conform into the standards stipulated by the Sri Lanka Medical Council”.
- “In the case of professional degree programs in medical sciences, the availability of teaching hospitals with professorial units for clinical teaching/practice and for gaining experience in advanced clinical/laboratory techniques.
But further to the Universities Act, the Government failed to publish the guidelines required.
Extracts from the report prepared by the inspection team observing Neville Fernando Teaching Hospital (NFTH) and presented to the Medical Council.
NFTH has 850 beds and the new wing has 152 beds (total of 1,002 beds). However only 200 beds have been commissioned in the first phase of hospital development… All categories of patients have been used for clinical teaching… Despite these increasing numbers, it is clear that the patient turnover at the NFTH in all specialties is grossly inadequate for provision of sufficient clinical learning material for the large number of students currently undergoing clinical appointments.
Based on the observations made, the investigating team had identified the following as the main deficiencies at SAITM.
- General inadequacy of clinical exposure. In particular, exposure to trauma in surgery, common surgical and obstetrics and gynaecology emergencies, as well as exposure to emergencies in adult medicine and paediatric care is lacking. The faculty is making an attempt to overcome these deficiencies, but it is still insufficient at present.
- Lack of facilities for training in practical clinical forensic medicine. E.g. To examine and report on clinical medico-legal cases to the police and courts of law; and no provision to carry out medico-legal post-mortem examinations.
- Deficiency in exposure to preventive care services in the State sector i.e. the MOH office activities and filed services.
Observations of the Court
When analysing above the deficiencies along with the observations made, it is clear that the investigation team had studied the functions at SAITM with the intention of improving the study program and recommending suitable field practice areas to develop a working relationship with existing public health service.
However, the investigating team in their conclusion had surprisingly recommended that the SLMC does not recognise graduates who have completed the study program currently provided by the faculty of medicine of SAITM as suitable for provisional registration. When considering the observations made, it is clear that the above observations do not match with the final recommendation made by them.
Kotelawala Defence University
The petitioner submitted before this court another evaluation made by the SLMC with regard to another degree awarding institute namely Kotelawala Defence University, to establish the mala-ide of the SLMC.
The report said to have been prepared by the investigating team of the SLMC comprising of the president of SLMC and four other members including Prof. Rezvi Sheriff, who headed the investigating team to SAITM and Prof. Ranjani Gamage, another team member investigating SAITM.
A two-page report on their preliminary investigation had concluded as follows: “Taking into consideration the facts presented and the tour of the facilities available at the FOM-KDU, the visiting team considered that the FOM-KDU would be able to produce competent military doctors. The facilities provided for training were found to be of very high standard and the team felt that once the hospital was completed in 2015, the entire training of military medical graduates could be undertaken in these facilities.”
This court observed that the said investigating team to reach the above conclusion they have considered the facilities at FOM-KDU in only two paragraphs of their report and come to a conclusion that the facilities provided for training were found to be of very high standard, even prior to the construction of the 700-bed teaching hospital which was due to be completed in the 2015.
When considering the two reports referred to above, it appears that one report has been made after inspecting SAITM and the other after inspecting FOM-KDU, but two different standards have been used when preparing those reports.
It was further concluded by this court that in the absence of any finding by the Minister under section 19 C (3) of the Medical Ordinance, there is no obstacle with the SLMC to act under section 29(2) of the Medical Ordinance and provisionally register the petitioner. That is to say that the petitioner has a legal right to provisionally register under section 29(2) of the Medical Ordinance (as amended) since she had fulfilled the necessary requirements under the said Ordinance.
Reactions to court decision
After the court ruling, over 2,000 university students marched into Colombo Fort in protest of the Court of Appeal ruling on the SAITM medical degree on the basis that the court order would lead to the privatisation of the country’s education system. The GMOA appealed against the judgement of the Court of Appeal and also continued conducting noisy campaigns with sudden strikes creating tremendous pressure on public.
Although the SLMC was instructed by the Court of Appeal, they failed to recognise the medical degree of SAITM for the purpose of registration to practise medicine and surgery in Sri Lanka under the Medical Ordinance, but appealed against the decision to the Supreme Court.
Charges against the SLMC
Meanwhile, a MBBS graduate of SAITM filed a petition against the SLMC, that the members of SLMC be charged for committing contempt of court offense by wilfully and contumaciously failing to provisionally register the petitioner as a medical practitioner in terms of Section 29(2) of the Medical Ordinance and thereby disobeying the order of Court of Appeal dated 31 January 2017.
Government inaction and closure of SAITM
When the Court of Appeal order was not accepted by the SLMC, but appealed against the decision, Minister of Health Rajitha Senarathne may not have comprehended the court order, but the Attorney General should have advised the Health Minister of the consequences of the court order.
The Government failed to take action as per court order under pressure of the protesting GMOA and university students and enacted an act of Parliament passed in June allowing Sir John Kotelawala Defence University to award MBBS degrees to SAITM students who completed the degree. The inaction by the Government to take remedial action as per the court order forced SAITM to close down.
Supreme Court judgement
The Supreme Court on 21 September affirmed the Court of Appeal judgement and dismissed the petition filed by the SLMC challenging the judgement of the Court of Appeal and ordered the SLMC to register the MBBS graduate conditionally as a medical practitioner in terms of Section 29(2) of the Medical Ordinance. The Supreme Court held that the SLMC is a creature of a statute and was obliged to follow the law. The court directed that provisional registration be given to the petitioner without delay. The court also directed that the petitioner be provided with all the rights consequent to such registration.
The SC said that the wrongful action of the SLMC had delayed the rights of the petitioner, causing her anguish and considerable expense. In the circumstances, the SC ordered the SLMC to pay the petitioner Rs. 100,000 as costs.
Irresponsibility of Government
The SC ruling also holds the Government responsible for not making decisions and delaying a final decision. In its ruling, the SC say:
“While this appeal was pending, the Government has taken several steps with regard to SAITM and the students of SAITM. However, these steps were taken by the Government and the enactment of the aforesaid statute all occurred long after the petitioner filed her application in the Court of Appeal and also long after the SLMC filed an application in this court seeking this special leave to appeal from the order of the Court of Appeal.”
Dr. Padeniya – Contempt of court
An E-paper dated 19 October reported the following under “Contempt of court action against Dr. Padeniya fixed for inquiry”.
“The contempt of court case filed against Government Medical Officers Association (GMOA) President Dr. Anuruddha Padeniya for allegedly undermining the Court of Appeal judgement delivered regarding the SAITM issue was fixed for inquiry yesterday.
The Court of Appeal had observed that there are sufficient materials to issue a rule against Dr. Padeniya in respect of a charge sheet filed against him over contemptuous statements. On a previous occasion, a charge sheet was served against Dr. Padeniya by the Court of Appeal for allegedly undermining the court’s judgement dated 31 January 2017, which compelled the Sri Lanka Medical Council (SLMC) to register the MBBS graduates of the South Asian Institute of Technology and Medicine Ltd. (SAITM) provisionally as medical practitioners in terms of the Medical Ordinance.”
Notice on SLMC
The same court noticed the members of the SLMC to appear in the Court of Appeal on 16 November to show cause as to why they should not be punished for contempt of court for their failure to register a student of SAITM in Malabe in terms of the Court of Appeal judgement.
More medical faculties
In August 2017, University Grants Commission Chairman Prof. Mohan de Silva informed that Sri Lanka plans to establish medical faculties at State universities of Wayamba, Sabaragamuwa and Moratuwa. The country has a doctor for every 1,100 persons, compared with the world average of 670 people per doctor.
According to the latest world ranking, University of Peradeniya became the best university in Sri Lanka, while University of Colombo got second place. However, none of the local universities are among the top 2,000 universities in the world. Prof. de Silva says that steps are being taken to address the issues.
He further informed that doctors and students have been protesting for months, requesting the Government to shut down the private SAITM, the only private university in Sri Lanka currently training medical students, saying that opening private universities will affect access for children from poor families to education opportunities.
Meanwhile, a banner displayed in front of Katubedda University demands Government to set up immediately the affiliated medical faculty to their university as promised.
Let us look at the current situation of existing medical faculties.
KDU hospital
The Kotelawala Defence University was granted approval by the SLMC in 2014. President Maithripala Sirisena declared open the newly built KDU Hospital at Werahera on 21 May 2017. The hospital has 696 beds for in-patients, 63 for ICU, 39 for emergency and 13 for dialysis units. The hospital also has 20 operation theaters for various diseases, the highest in the country.
The KDU hospital commenced treating OPD patients seven months later, on 15 December 2017 and is open from 8:30 a.m. to 4 p.m. A recent signboard at the hospital entrance announces that the hospital would commence admitting residential patients soon.
Rajarata University
A few weeks ago, the Rajarata Medical Faculty Students Union went on strike claiming: “We have to face lack of facilities in hostels, in study halls and library. The buildings are in a dilapidated condition. When considering lecturers numbers, there are only 49 tutorial staff when the required amount is 114. This situation has declined the standard of the medical degree in our university. Although several complaints were made to University Grants Commission, no action has been taken yet. Because of the prevailing crisis, the exams and convocation has been delayed indefinitely.”
Same newspaper reported a couple of months ago that: “The Department’s Heads of Rajarata University’s Medical Faculty have submitted their resignation as a protest against the Vice Chancellor’s decision to stop the retention allowance paid to the university teachers.” This showed reasons for explosion of the issue.
Eastern University
Eastern University (EU) had been established two years prior to Rajarata University, but received no development funding during Rajapaksa period. Even today, EU has the poorest facilities and face severe shortage of lecturers. Staff shortage is also due to poor private practice facilities in respective regions due to lack of good private hospitals and a rich population. Both universities cover their shortage of teaching staff, by showing bloated professional staff numbers by including staff of their teaching hospitals.
The Government has proposed three additional medical faculties attached to universities while being unable to supply existing universities with much needed infrastructure and also teaching staff. Even if money is allocated, the deficiency of specialist staff and professors cannot be solved easily. Thus establishment of additional medical faculties is not practical, only suggested as demanded by the GMOA for their own reasons.
Change of policies with new Government
A few days ago, MP Bandula Gunawardana in the current questionable Cabinet and GMOA President Dr. Anuruddha Padeniya were at a press meeting and the former informed that the Free Trade Agreement (FTA) signed by the previous Government with the Government of Singapore is acceptable. Surprisingly, Padeniya did not protest Bandula Gunawardana’s policy change. Up to a few weeks ago, both criticised the Singapore FTA agreement vehemently. Why this sudden change from both parties?
What made Padeniya turn around from the anti-Singapore FTA? When MR was elected Prime Minister in a doubtful Government, Padeniya would have sighted a ray of hope from prosecution as prescribed by the Supreme Court in contempt of court regarding his role in SAITM issue. He may be hoping that the new Government could save him. The GMOA’s protests against SAITM commenced only after the change of government in 2015.
Can SAITM make a comeback?
Now that the Supreme Court ruled SAITM graduates as acceptable for registration as medical professionals by SLMC, there are no legal objections for operation of SAITM as an accepted medical college. However practically, most professors and staff would have left and it needs recommencement which is a tedious task. If allowed, some students who joined KDU might come back. Recommencement of SAITM would help the country to get properly trained medical officers and save the country billions of Rupees wasted in medical education abroad.
SAITM should be eligible for compensation from the Government, SLMC and GMOA for the losses undergone, although the court procedure may take time.
If the Government enacts legislation for minimum standards of education for all medical schools, public and private, and also ensure proper implementation, it would improve standards and help our universities achieve higher world rankings.
Published in the Daily FT on 6 December 2018