The Tribune

BY NEIL HARTNELL

TRIBUNE Business Editor

nhartnell@tribunemedia.net

A DOCTOR, who was first suspended for “forging sick certificates” for 185 Atlantis workers over a four-month period, has lost the latest bid to reinstate his medical licence to practice.

Sir Ian Winder yesterday ruled that Dr Bertram Sears had supplied no “good reason” for why he missed the deadline, set in law, to launch a Judicial Review challenge to the Bahamas Medical Council’s (BMC) July 14, 2021, decision that left him in “regulatory limbo”. And he found that giving the doctor the extra time he sought would be “detrimental to good administration” of the medical profession and the public interest.

The Chief Justice, in his verdict, noted that Dr Sears was found by the Bahamas Medical Council’s disciplinary committee to have “not told the truth” after Atlantis complained more than 11 years ago about the number of sick slips he had issued to its employees to enable them to take days off work.

The slips were issued over a four-month period between late 2014 and early 2015, and the Council’s disciplinary committee upheld the Paradise Island mega resort’s complaint that these were “forged” and issued without the patients being examined to determine if they were truly ill.

“The underlying disciplinary proceedings brought against Sears arose from a formal complaint by Atlantis. The complaint alleged that, between November 6, 2014, and February 2015, the applicant issued 185 sick certificates without conducting medical examinations to determine whether the certificates should be granted,” Sir Ian wrote.

“The disciplinary committee of the BMC conducted a detailed investigation, in which Sears was legally represented. The committee held two days of hearings, heard evidence from Sears, and invited written closing submissions on his behalf. The Committee found that Sears was not a credible witness and had not told the truth. It concluded that he had forged sick certificates, despite his denials, and that he was guilty of serious professional misconduct.”

As punishment, the BMC’s disciplinary committee “recommended that Sears be reprimanded and that the reprimand be entered in the Medical Register”. It added that he must also attend, and pass, an “intensive course” on medical ethics and recommended that his medical licence to practice be suspended until this occurred.

The committee stipulated that Dr Sears take the “PROBE programme” held by the National Centres for Personalised Physicians Evaluation and Education. “The PROBE programme is described by the BMC as an intensive, personalised, non-adversarial remediation programme,” Sir Ian wrote.

“It comprises pre-session assignments, a 16-hour seminar programme, and a final essay graded by PROBE. It is targeted to the practitioner’s specific infraction, and requires disclosure and reflection on the misconduct.”

The full BMC accepted the findings and recommendations, but Dr Sears missed the 25-27, April 2017, course dates as he was still pursuing an appeal against his licence suspension, which he ultimately abandoned that July.

“Sears eventually enrolled in the PROBE programme and attended the course in Denver, Colorado, on 24–26 August 2017,” the Chief Justice added. “He was unsuccessful in this attempt.

“On October 5, 2017, the BMC wrote to Sears and advised him that they had been made aware of the fact that he had failed the PROBE programme and that his licence remained suspended until he satisfied the Council’s requirements. Sears did not re-enroll in the PROBE programme.”

Instead, Dr Sears eventually applied to have his licence reinstated in January 2021 and provided evidence that he had completed a different, online course on ‘Medical ethics, boundaries and professionalism” at Case Western Reserve University. However, Sir Ian noted that the doctor did not obtain the BMC’s view of the course, whether it was equivalent to the PROBE programme and if passing would result in his licence being returned if he passed.

The BMC, in a July 14, 2021, response to Dr Sears’ reinstatement application, supplied by his then-attorney, the late Romona Farquharson-Seymour, demanded that he provide more details on the Case Western course so it could determine whether it matched PROBE. The letter, signed by Dr Merceline Dahl-Regis, former chief medical officer, also reminded Dr Sears that he needed the Council’s approval before enrolling in a re-entry course.

“The BMC says that it gave Sears an opportunity to provide further evidence that the Case Western course was equivalent to the PROBE programme, and did not refuse his application outright,” Sir Ian said.

“Sears did not respond to that request until October 27, 2022, when his attorneys, Cedric Parker & Company, wrote to the BMC asserting that the Case Western course was equivalent to the PROBE programme. The BMC says that Sears’ attorneys did not provide further evidence or any reasoned basis for that assertion.”

The BMC’s position was that the Case Western course did not match the PROBE equivalent, and it did not reinstate Dr Sears’ licence - thus triggering the legal action he launched almost two years’ later on May 23, 2023. This was later changed to a Judicial Review case on July 4, 2024, with this type of action used to challenge the decisions and powers of public authorities such as the BMC.

Dr Sears demanded that the Supreme Court “quash” the refusal to restore his licence and, instead, “immediately restore” his name to the Medical Register of doctor able to practice medicine. He alleged he was the victim of an unlawful decision, and subjected to “arbitrary, oppressive, inhumane, degrading” conduct.

“Sears submits that he provided the BMC with all reasonably available information showing that the Case Western Reserve University School of Medicine course.. was equivalent to the course recommended by the BMC. He says Case Western was accredited by the Accreditation Council for Continuing Medical Education, and that he was therefore entitled to a substantive decision on his application for restoration,” Sir Ian wrote.

“If the BMC had a genuine concern about the course, Sears argues that it should have conducted a transparent investigation, communicated its findings and raised any concerns directly with Case Western, which had invited such contact… He maintains that he was entitled to a lawful pathway to resume practice in The Bahamas, particularly where both programmes were said to be ACCME-accredited.”

Sir Ian added that Dr Sears had branded the Council’s July 14, 2021, decision “as a continuing wrong that leaves him in regulatory limbo”. However, the Council countered by asserting that all Dr Sears’ arguments were in vain because the Judicial Review action was brought on July 4, 2024 - almost three years’ after the decision complained of, and well outside the six-month deadline imposed by the Supreme Court’s civil procedure rules.

This was an argument that found total agreement from the Chief Justice, who said the “failure to act promptly” brings Dr Sears’ action to an immediate halt. And the doctor had supplied no good reason to explain or justify the delay.

An affidavit filed on Dr Sears’ behalf said: “The applicant humbly apologises for the delay in instituting these proceedings. The applicant undertook significant cost and expense in securing counsel to represent him in this matter, and the unreasonable and protracted delays and silence on the part of the respondent contributed to the overall time taken. The applicant instituted these proceedings as soon as he could manage to do so.”

Sir Ian agreed with the BMC’s argument that Dr Sears had given no suitable explanation for the delay. And he added: “Firstly, Sears has not demonstrated any urgency in pursuing the reinstatement of his licence. The BMC, on March 1, 2017, imposed the condition that Sears complete the PROBE programme timely and indicated that he should enroll in the programme scheduled for 25-27 April, 2017.

“Sears did not enroll in the programme, as directed, resulting in the cancellation on his licence with effect from 1 June, 2017. Sears eventually took the PROBE programme held in August 2017 and was unsuccessful. Having failed the programme, and rather than retake the PROBE programme, which he was permitted to do, Sears enrolled himself in the Case Western programme.

“Sears undertook this programme without determining whether the BMC would accept it as an alternate to the PROBE programme that he was directed to complete. Remarkably, he does not enroll in this programme until February 2020, two-and-a-half years later. Even more remarkably, Sears does not apply to be reinstated until January 2021, a year after completing the course.”

Sir Ian also noted that Dr Sears took 15 months to reply to the BMC letter demanding he supply proof that the Case Western course was equal to PROBE. “I am satisfied that this is not a case where there is good reason for extending the time within which to apply for Judicial Review,” he added.

“I am also satisfied that any relief sought by Sears, assuming there was good ground, ought to be refused on the ground that to grant it would be likely to cause hardship or prejudice or be detrimental to good administration. The BMC has pointed to the protracted lapse of time since Sears was directed to complete the PROBE programme, arising from his very serious infractions, some six years ago”

The BMC, in its evidence, said nine years had passed since the PROBE condition was imposed, and Dr Sears’ reinstatement “would require an up-to-date assessment of his suitability, competence, conduct and compliance with statutory requirements”.