The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Attorneys are usurping the Bahamas Medical Council’s (BMC) role as physician watchdog to the point where patient safety may be endangered, the FNM’s chairman is arguing.

Dr Duane Sands, speaking after a recent Supreme Court ruling described the profession’s governing law as badly written, told Tribune Business that attorneys are exploiting “loopholes” in the Medical Act and other legislation to the point where the Council’s self-regulatory role in protecting the public and maintaining “the highest standards of practice” is being undermined.

Recalling how one doctor, who had “practiced at an unacceptable level”, was able to escape punishment thanks to such legal gaps, he argued that the continued use of legal “technicalities” to overturn Council decisions has “some serious life and death implications” for patients of the worst was to occur.

While acknowledging that all in The Bahamas are subject to “the rule of law”, and court decisions must be regarded as final and binding, Dr Sands told this newspaper that physicians must have ultimate responsibility for self-regulating themselves as he asserted: “I don’t pretend to be a lawyer. I don’t think the lawyers should pretend to be doctors.

“The Medical Act was most recently revised in 2014,” he added. “A phenomenal amount of work went into it, but unfortunately there are some lacunae, there were some things that were not anticipated, etc. To be very blunt, the challenges to the Medical Act and the Medical Council have flourished.

“People are trying to get what they want whether it’s consistent with the spirit of the profession or not. Quite frankly what has happened, and this is very strong language, is that the legal profession has decided they will be the watchdogs for everybody and the medical profession cannot police itself.

“You have a Council established to ensure the safety and quality of practice in The Bahamas, and then the lawyers come around and exploit the loopholes and say that’s the law.” Dr Sands spoke out after Justice Loren Klein, in a Supreme Court ruling earlier this month, found that the Medical Act “was perhaps not drafted with the care it might have been” despite it being the main law regulating doctors.

He reached this conclusion in ruling that it would be “an unjust and absurd result” if - as the Medical Council had argued - specialist doctors could appeal any disciplinary action taken against them but were unable to take the same action when their registration application was rejected. In doing so, Justice Klein ruled against the Council’s narrow interpretation of the Act passed by Parliament one decade ago.

Dr Sands, though, said: “All of a sudden you find the lawyers, the courts etc get into the business of countermanding the decision. We have had a number of instances where the Medical Council finds itself challenged on the technicalities because of drafting issues with the Act.

“A number of judgments have been given that fly in the face of even, in my view, the safety of the public: ‘We’ll give this one a licence because section six in the Medical Act is improperly drafted and so on and so forth. 

“While I think it’s very important to understand that the rule of law, we all exist because of the rule of law, the technicalities have some serious life and death implications. When you ask who ought to be the watchdog for a particular profession, if you ask me the architects should be the watchdog for the architects, the accountants should be the watchdog for the accountants, the physicians should be policing themselves.”

Dr Sands argued that “we are really walking down a slippery slope” by making so many Bahamas Medical Council decisions “subject to the interpretation of the lawyers”, as he added: “We expect people to make the tough decisions and there ought to be a ‘no blame’ basis.”

He recalled when, as chair of the Medical Council, one disciplinary matter became “so tied up in injunctions” that even now - ten years or one decade later - he is prevented from discussing it. “While the lawyers do what they have to do to get their clients what they want, let’s be very clear,” Dr Sands told Tribune Business.

“You’re talking about protecting the welfare and safety of the jurisdiction and ensuring standards of practice are maintained to the highest level. Some may say this is a Scud missile directed at the heart, but I think the problem may be let’s call a drafting challenge exactly what it is: A drafting challenge.

“Yes, the Act may have to be updated. We have a number of medical-related Acts. The Vaccine Act came in in 1860. I can guarantee you that it needs to be updated. The current Bahamas Vaccine Act has been around since the 1860s. Does it need to be updated? Yes, it does. Does it mean we throw the baby away with the bath water? Probably not. Sometimes we complain when we don’t get the standards we want.”

Dr Sands said he has witnessed “more and more and more” challenges to the Medical Act based on loopholes and gaps discovered by attorneys and their clients, and acknowledged that Parliament - as the Government’s legislative or law-making arm - “is not as responsive to these kinds of things” - as it might be.

“These are the kinds of results you get when judges and lawyers have a field day with it,” he added. “I am very much one who believes in maintaining very high standards of practice in the country, but I think that standard of practice of physicians ought to be under the oversight of senior physicians.

“They have exploited this whole thing about weaknesses in the 2014 legislation, but that took more than ten years to make it from a Bill to an Act. If we had wanted it to be perfect, it would still be going back and forth now from the Council and [Medical] Association to the medical community.

“The criticisms that are being levied are, I think, heavy-handed and I think the persons that managed to get that Act into force deserve to be commended notwithstanding the challenges, the weaknesses, the problems. Come show me a perfect Bill and I will be amazed. I don’t think there’s a perfect Bill that exists, and one that anticipates a lot of the challenges,” Dr Sands continued.

“We want to maintain the highest possible standards. The unintended consequence of this is you will have individuals who throw their hands up and say this is not worth it. You try to make the decisions in the interest of patient safety and so forth, and it’s picked apart. Then, when something happens on the back side, you get blamed for it.

“There are some people who ought not to be practicing. While there’s a need for objectivity and fair play, there’s still a role for peer review. I don’t pretend to be a lawyer. I don’t think lawyers should pretend to be doctors.”