The Tribune

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

A SUPREME Court judge has ordered the Bahamas Medical Council to reconsider its decision not to grant a Family Island doctor a licence for independent practice, calling the decision "bad in law" and worthy of being set aside.

Justice Ian Winder, in a written ruling, found there was "no proper consideration" of Dr Mandela Kerr's independent practice application, and that the reasons the council gave for refusing the application cannot "be sustained in law and upon the evidence."

However, Justice Winder said he would "resist" his inclination to order Dr Kerr to be registered by the BMC, instead deciding it would be more "prudent" for him to remit the matter to the council for a "proper consideration" of that doctor's application.

According to the ruling, Dr Kerr secured his medical degree on July 12, 2007, from the Higher Institute of Medical Sciences Santiago de Cuba. In the following years, he obtained three more qualifications, such as the grade 1 specialty in comprehensive general (family) Medicine; a diploma in natural medicine; and a grade 1 specialty in dermatology.

He was also successful in the Caribbean Association of Medical Council's Examination held October/November 2015.

He worked for the Department of Public Health (DPH) from 2016 and has worked in almost all of the government clinics in New Providence. He also successfully completed supervised rotations working in paediatrics, gynaecology, family medicine, and three months in the Princess Margaret Hospital's Accident and Emergency Department.

In January 2017, Dr Kerr was posted by the DPH as medical district officer, the only medical doctor (MD) for the island of Andros and stationed in the Miriam Green Clinic in Kemp's Bay. He was officially given responsibility for Mangrove Cay in October 2017.

At some point, Dr Kerr, given his qualifications and experience, applied for registration and licensure as an independent medical practitioner and specialist.

However, the BMC, in a letter dated November 16, 2017, determined he was "ineligible" for registration under Section 15 of the Medical Act, 2014, to engage in independent practice.

They further noted in the letter that he was required to complete two years of "supervised rotational medical practice" and successfully pass the special purpose examination (SPEX). And upon his successful completion of the SPEX, he would be "eligible" for registration and licensure as an independent medical practitioner.

Dr Kerr, and his attorneys Kahlil Parker and Roberta Quant, appealed the decision on numerous grounds, but chiefly that the BMC requiring him to take the SPEX was "unreasonable" and "unlawful" and that given his "overwhelming qualifications and experience," he should not have his licensure and registration "subjected to any further or other arbitrary, unreasonable, unlawful and ultra vires conditions."

Dr Kerr further contended the BMC failed to provide him with any reasons, or any sufficient or adequate reasons, for the decision, which thus deprived him of any reasonable opportunity to scrutinise or "critically analyse" the BMC's conclusions.

When the matter went up for hearing, the council had contended that Dr Kerr was licenced under Section 22(3)(c), and that his registration was granted because he was in the public service where the opportunities for supervision exists.

In essence, they argued Dr Kerr's qualifications sanctioned the treating of public patients but not private ones. They further contended that his licence to practice medicine and surgery, issued by the BMC in December 2017, specifically noted he has "no right to independent private practice".

However, Justice Winder said "no such distinction" is drawn in the Act regarding registration and neither does there appear to be the power to create such a category in the register.

Additionally, he said that allegation is not evident on the face of Dr Kerr's licence, as there is "nothing to suggest that he was able to be subject to continued supervision."

Justice Winder further noted that Dr Kerr had a "valid complaint" when he said the BMC gave him no sufficient or adequate reasons, if any, for the decision.

Furthermore, Justice Winder said there is no provision for the BMC to register persons for "independent" practice, and neither is there any provision for a medical practitioner to be licensed to attend to private patients, but not public patients.

Justice Winder said what Dr Kerr applied for and was refused by the BMC was the fully licenced medical practitioner, thus, it is for that licence the BMC "must consider him".

"In all the circumstances, I am satisfied that the decision to refuse the registration of (Dr Kerr) was bad in law and must be set aside," Justice Winder said. "I am not satisfied that the statutory reasons were provided or that such reasons as were provided could be sustained in law and upon the evidence.

"In the circumstances, I allow the appeal setting aside the decision of the council. In as much as there was no proper consideration of the application, I remit the matter to the council for a proper consideration having regard to my decision herein."