The First Hall of the Civil Court, presided over by Mr Justice Anthony Ellul, on April 25, 2014, in the case ‘Frank Portelli v Josella Farrugia as president of the Medical Council and others’, held, among other things, that the failure by the Medical Council to deliver its decision within the two-year time limit rendered its decision ultra vires, null and void.

The facts in this case were as follows:

Frank Portelli made certain statements in public against Louis Buhagiar, relating to over-charging patients at St Philip’s Hospital and later suspended his privileges at the hospital. Portelli was the chief executive of the hospital, shareholder and practising specialist.

Buhagiar reported the matter to the Medical Council to investigate the case, claiming improper conduct by Portelli for making such statements against him, allegedly to damage his reputation. The Medical Council charged Portelli for passing derogatory statements against Buhagiar’s reputation. It took over two years to start the inquiry, and after hearing all evidence on May 30, 2006, a further three years passed before it gave its decision on July 1, 2009.

In its decision of July 1, 2009, the Medical Council decided that Portelli was guilty of defaming Buhagiar and condemned him to pay a penalty of €10,000. If this penalty was not paid within three months, Portelli would be struck off the register according to a legal notice, the Medical Council (Penalties) Regulation 2009, which came into force after the alleged incident.

Faced with this situation, Portelli filed legal proceedings requesting this court:

• to declare the decision of July 1, 2009 was null, without effect and to order its revocation;

• to declare that the decision violated the fundamental human right to a fair hearing and the right to free expression;

• to liquidate compensation;

• to condemn defendants, the Medical Council, to pay compensation; as well as

• to provide another remedy according to article 46 of the Constitutions and article 13 of the European Convention.

Legal proceedings were taken against the Medical Council, the Prime Minister, the Attorney General and the Minister of Health.

The Medical Council, in reply, contested the legal proceedings. It denied that its decision was ultra vires or that it violated the Constitution and European Convention. It said that the Medical Council had a duty to investigate the allegations of improper conduct which included defamation. The Council possessed the necessary competence toinvestigate the allegations of defamation on grounds of breach of ethics.

The Council argued that the fact that it took over two years to conclude was not in itself a violation of the right to a fair hearing. The right of free expression was not absolute. It was limited to protect the reputation of third parties nor did the penalty which it imposed under Regulation 38/2009 render its decision null.

It further maintained that Portelli did not suffer damages, and nor was he due any compensation. It said that its decision should be confirmed as valid at law and that Portelli’s claims should be dismissed.

The Prime Minister, the Attorney General and the Minister of Health denied being legitimate defendants in these proceedings.

Article 31 of Chapter 464 provides:

1. The relevant Council shall have the power, either on the complaint of any person or of its own motion, to investigate any allegation of professional misconduct or breach of ethics by a healthcare professional falling under its supervision;

2. Any inquiry under sub-article (1) into the misconduct or other failure in terms of article 32(1)(b) and (c) shall be barred by the lapse of two years which shall run from the day from which the complainant or any of the complainants become or ought to have become aware of the facts or incidents that give rise to the complaint and in any case by the lapse of 10 years from the date on which the alleged fact or incident was committed;

3. The period of limitation referred to in sub-article (2) may be interrupted by any act of the inquiry served on the party being investigated;

4. For the purposes of the foregoing provisions of this article, the relevant Council shall conclude the inquiry within a period of two years from the day on which any act of the inquiry proceedings is served on the party accused in respect of the fact or incident with which he is charged, except where the delay is occasioned through no fault of the relevant Council;

5. For the purposes of the foregoing provisions of this article, ‘complainant’ includes any person making a complaint to a relevant Council even though such person is not the injured party.

The inquiry was not concluded within the two-year time limit in this case.

Fair hearing: Portelli put forward the argument that the case was not decided within a reasonable time. He maintained that the Medical Council did not have competence to decide a case of defamation and that it interfered with his freedom of expression. Allegedly, the penalty imposed upon him was applied with retro effect and this was in breach of the European Convention and the Constitution. The Medical Council’s decision was ultra vires, contended Portelli.

The court had no doubt that the Medical Council had power to investigate improper conduct of medical professionals.

In the court’s opinion, the chief executive of the hospital had a right to take steps to check any abuse by any doctor practising at St Philip’s Hospital, even if he was self-employed

It said that it would not review the Medical Council under article 469A of Chapter 12 but under natural justice rules. The court had power to review its decision to determine whether it was ultra vires or contrary to the principles of natural justice or against the law, but not under article 469A chapter 12.

In the court’s opinion, the chief executive of the hospital had a right to take steps to check any abuse by any doctor practising at St Philip’s Hospital, even if he was self-employed. He had a duty to investigate over-charging by any doctor. However, if the claim of overcharging was not proven, such would amount to improper conduct.

The right of freedom of expression did not entitle a person to say what he pleased. The Medical Council did not find the allegation of overcharging to be proven. If Portelli felt Buhagiar abused his position, he could have reported him to the Medical Council and withdraw his privileges at St Philip’s; but once he chose to attack him in public, he was responsible for his declaration.

Time limit of two years: The two-year time limit was mandatory, and the Medical Council had to justify its delay. No proof was brought to justify the delay. No explanation was given why nothing happened for a number of years, after the sitting of May 30, 2006.

The court was not satisfied that a valid reason was given for the delay. It said that the Medical Council’s decision of July 1, 2009, was ultra vires as it was not concluded within the time limit imposed by law.

The decision was not delivered within a reasonable time by the Medical Council. It imposed a penalty which was not applicable at the time of the incident. The court noted that as a result of the delay, the Medical Council imposed a penalty on Portelli, which would not have applied if its decision was given within the two-year period and before legal notice 38 of 2009 came into force.

The right of freedom of expression carried duties and responsibilities and the exercise of this right was subject to “formalties, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, for the protection of the reputation or rights of others”.

This case differed from ‘Frankowicz v Poland’ (European Court of Human Rights) dated December 26, 2009. Here Portelli made a claim that Buhagiar was overcharging patients, and did not give a medical opinion.

The court said that article 7 of the Convention did not apply as the Medical Council proceedings were not in the nature of criminal proceedings. Reference was made to ‘Wickramasinghe v United Kingdom’ (1998) where the Commission held:

“The offence is thus classified as disciplinary within the domestic system. As to the nature of the offence, the Commission observes that professional disciplinary matters are essentially matters which control the relationship between the individual and the professional association to which he or she belongs and whose rules he or she agreed to accept. They do not involve the State setting up a rule of general applicability by which it expresses disapproval of, and imposes sanctions for, particular behaviour, as is generally the case of criminal charges.

“It is true, as the applicant points out, that the facts underlying the proceedings against the applicant, namely allegations of sexual indecency, could also have been the subject of criminal charges before the criminal jurisdiction. However, it is frequently the case that the factual allegations in professional disciplinary proceedings could also be pursued in ordinary criminal proceedings: in the present context, the possibility of parallel criminal proceedings does not make the nature of the offence inherently criminal.

“Finally, the Commission must have regard to the degree of severity of the penalty risked. Each of those sanctions (namely erasure from the register, imposing restrictions on the right to practice or suspension from practice) is essentially disciplinary and is directed to protecting the public and the reputation of the medical profession.

“The fact that erasure is likely to have far-reaching consequences for the individual concerned does not render the penalty criminal. It follows that the proceedings against the applicant did not determine a ‘criminal charge’.’’

For these reasons, on April 25, 2014, the First Hall of Civil Court gave judgment by liberating from the proceedings the Prime Minister, the Attorney General and the Minister of Health.

It declared that the Medical Council failed to conclude its inquiry within two years under article 31(4) of chapter 464. On the lapse of the two-year period, the Medical Council had no authority to give its decision of July 1, 2009 and declared its decision to be ultra vires and revoked it.

Dr Karl Grech Orr is a partner at Ganado Advocates.