Tommaso Barucca v Allied Health Professionals Council

• Jurisdiction: British Virgin Islands
• Judge: Ellis J
• Judgment Date: 06 December 2021
• Judgment citation (vLex): [2021] ECSC J1206-4
• Docket Number: Claim No. BVIHCV 2020/0034
• Court: High Court (British Virgin Islands)

[2021] ECSC J1206-4

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Claim No. BVIHCV 2020/0034

In the Matter of an Appeal Under Section 71 of the Medical Act, 2000 (As Amended) and Under EC Cpr Part 60

Between

Tommaso Barucca

Appellant

and

Allied Health Professionals Council

Defendant

Appearances:

Mr. Romane Duncan and Mr. Richard Parchment of Harneys, Counsel for the Claimant

Mr. Michael Adkins and Ms. Daisy Bovingdon of Collas Crill, Counsel for the Defendant.

Ellis J

1 Before the Court is a statutory appeal filed pursuant to section 71 of the Medical Act 2000 (as amended) (“the Act”). The Appellant seeks to appeal the decision of Allied Health Professionals Council (“the Council”) to refuse his application for registration as a chiropractor (“the Decision”). The relevant factual background which informed this appeal is largely not disputed and is summarised below:

• i. In or around June 2019 the Appellant submitted an application to the Allied Health Professionals Council for registration to practice as a chiropractor in the British Virgin Islands.

• ii. On 18 ^th July 2019, the secretary to the Council communicated to the Appellant that the Council had received his application for registration but that he did not meet the criteria for registration as a chiropractor because he did not hold a doctor of chiropractic degree. According to Counsel for the Council, this was not the corporate decision taken by the Council (who only met to consider the Application on 23 ^rd October 2019) but rather a preliminary indication.

• iii. On 23 ^rd October 2019, the Council deliberated on the Application and determined that it would refuse the Appellant's application for registration on the basis that it was not satisfied that he was eligible by reasons of his qualifications and experience to be registered as a chiropractor. The reasoning of the members of the Council was recorded in a document known as a “sign off” sheet dated 23 ^rd October 2019.

• iv. By emailed message dated 12 ^th November 2019, the Council's Registrar was informed of a request to review its Decision to refuse the Appellant's application. The author informed the Registrar that:

  • a. The Msc in Chiropractic is a full 5 year course compared to the shorter Masters in Chiropractic;

  • b. In the UK the Masters in Chiropractic entitles the holder to use the title of Doctor of Chiropractic;

  • c. The title of Doctor of Chiropractic is a professional designation and not a true doctorate and that the tradition of the world outside the USA is to issue academic qualifications such as Bsc Chir, Msc Chir after equivalent courses of study and that these qualifications are recognized for registration to practice. One such body is the European Council of Chiropractic Education.

• v. On 28 ^th November 2019, the Council finally indicated its Decision to the Appellant by way of email. By this email the Council adopted the emailed decision of 18 ^th July 2019 and stated as follows:

  • 1. “Please note the information that was sent to you in reference to your request for registration below. This email indicated to you that you do not meet the requirements for registration as the Council does not register applicants with Msc in Chiropractic. Hence this email serves as the formal correspondence as to your denial and reason for denial. Please see the email below in red that was pasted for your convenience. [the 18 ^th July 2019 email was pasted below]

  • 2. Please note in response to considering by law, it is not a requirement to be a DC in order to work in the BVI that the qualifications for registration for any Allied Health Practitioners are not listed in the Law but in our Requirements for Registration for Alternatives Practitioners.

  • 3. ….

  • 4. ….”

• vi. The Council has represented that it was guided in its decision making by a formal policy/recommendation of the BVI Medical and Dental Council and which was adopted by the Council on 16 ^th February 2016.

• vii. By way of Fixed Date Claim Form dated 12 ^th February 2020, the Appellant lodged an appeal in the High Court, under the Act and EC CPR Part 60, against the Decision of the Council (“the Appeal”). He seeks the following relief:

  • (a) That the Decision be set aside;

  • (b) An order directing the Council to approve the registration of the Appellant as a chiropractor;

  • (c) Costs.

• viii. On 17 ^th April 2020 the Council filed and served an affidavit by way of defence to the Appeal. In response, the Council raised two preliminary points, namely:

  • (i) that there is no statutory appeal pursuant to section 71 (1) of the Act from the Decision as; (a) the registration of the Appellant was conditional upon the Appellant satisfying the Council that he is qualified to be registered; and (b) Section 71 (4) excluded such decisions from the ambit of the statutory appeal mechanism provided by section 71 (1) of the Act (Preliminary Issue 1); and

  • (ii) that the Appellant is out of time to bring the Appeal as; (a) Rule 60.5 of the EC CPR provides that an action pursuant to rule 60 must be brought within one month of the decision being appeal; (b) the Decision was made on 23 ^rd October 2019 and communicated on 28 ^th November 2019; and (c) the Appeal was brought on 12 ^th February 2020, some 2 – 3 months after the Decision was issued (Preliminary Issue 2), (together, the Preliminary Issues).

• ix. On 19 ^th May 2020, after hearing oral submissions from the Parties, the Court gave an oral judgment dismissing the Council's Preliminary Issues.

2 The Appellant has advanced 4 main grounds of appeal:

Ground 1 — that the Council erred and/or misdirected itself in law in finding that the Appellant does not meet the requirements under the Act for registration as a chiropractor when he plainly satisfies the required criteria.

Ground 2 — that the Council erred and/or misdirected itself in law in finding that a doctor of chiropractic degree is required in order to be registered under the Act as a chiropractor when such a requirement cannot be construed from the Act.

Ground 3 — that the findings of the Council that the Appellant does not meet the requirements for registration under the Act and that a doctor of chiropractic degree is required to be registered as a chiropractor are irrational and unreasonable.

Ground 4 — that the Council acted ultra vires in refusing to give effect to the legitimate expectation of the Claimant being registered under the Act in circumstances where the Council has in the past approved registration of chiropractors with qualifications other than a doctor of chiropractic degree.

THE PARTIES' SUBMISSIONS

3 Because of its sweeping application, the Court has first considered Ground 3 of the Appeal. Under this Ground, Counsel submitted that although this claim is a statutory appeal, the Court is not proscribed by matters of legal interpretation but may engage the full range of issues which would otherwise be the subject of an application to the High Court for judicial review. In support of this contention, Counsel for the Appellant relied on the following dictum of Bean LJ in Nipa Begum v Tower Hamlets London Borough Council 1:

“In my view, the law is correctly stated in the commentary to section 204 in the Encyclopaedia of Housing, Vol. 1, paragraphs 1–1799/860 and in the note on the section at page 1577 of the current edition of the Green Book. It is that “a point of law” includes, not only matters of legal interpretation but also the full range of issues which would otherwise be the subject of an application to the High Court for judicial review, such as procedural error and questions of vires, to which I add, also of irrationality and (in) adequacy of reasons. This broad construction of the provision is supported, as the editors of the Encyclopaedia observe, at Vol. 1, paragraphs 1–1799/860 and 1–1799/869, by the somewhat wider or more immediate power to vary given to the County Court by section 204 (3) than the High Court normally exercises in its judicial review jurisdiction.” Emphasis mine

4 This reasoning was approved by the House of Lords in Runa Begum v Tower Hamlets London Borough Council (First Secretary of State intervening) 2 where Lord Bingham of Cornhill stated:

“although the county court's jurisdiction is appellate, it is in substance the same as that of the High Court in judicial review …thus the court may not only quash the Authority's decision under s. 204 (3) if it is held to be vitiate by legal misdirection or procedural impropriety or unfairness or bias or irrationality or bad faith but also if there is no evidence to support factual findings made or they are plainly untenable or if the decision maker is shown to have misunderstood or been ignorant of an established and relevant fact…”

5 On the strength of these authorities, Counsel for the Appellant submitted that the Appellant is at liberty to challenge the Council's Decision on what would typically be considered to be judicial review grounds.

6 Counsel for the Appellant elected to deal with grounds 1 and 2 together. He submitted that section 41 of the Act confers a discretion on the Defendant to approve the registration of individuals who are seeking to practice as allied health practitioners in the British Virgin Islands. This interpretation is clear on the wording of the Act as subsection 41 (3) states that the Council must be ‘ satisfied’ that the applicant has the requisite qualifications. However, in keeping with the authorities above and on the very wording of the provision, the discretion afforded to the Defendant is not absolute and must be exercised in a proper way. The limits to this discretion are apparent on the ordinary meaning of the provisions of the Act which state that the Defendant ‘shall direct that the applicant be registered if it is satisfied that the applicant has the requisite qualifications set out in Part II of Schedule 4 in respect of his...