Fay and Payne v The Governor and the Bermuda Dental Board

• Jurisdiction: Bermuda
• Judgment Date: 16 August 2006
• Date: 16 August 2006
• Docket Number: Civil Jurisdiction 2005 No. 100
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Kawaley, J

Civil Jurisdiction 2005 No. 100

BETWEEN:

Dr James Fay

and

Keri Payne

Applicants

and

The Governor

Respondent

and

The Bermuda Dental Board

Intervenor

Mr D Kessaram for the Applicants

Mr W Bourne and Mr M Johnson for the Respondent

The following cases were referred to in the judgment:

Preiss v General Dental CouncilWLR [2001] 1 WLR 1926

LeCompte v Belgium [1981] ECHR 3

County Properties v Scottish MinistersUNK [2005] 5 LRC 709

Hall v Bermuda Bar Council Civil Appeal no 13 of 1982

Meerabux v Attorney General of BelizeELR [2005] 2 AC 513

Minister of Home Affairs v FisherELR [1980] AC 319

Grape Bay Ltd v Attorney GeneralBDLRUNK [1997] Bda LR 59 and [2000] 1 LRC 167

Browne v RUNK [1999] 3 LRC 440

Attride-Stirling v Attorney GeneralUNKBDLR [1995] 1 LRC 234; [1995] Bda LR 6

Bermuda Constitution, s. 15

Constitutional application — Disciplinary proceedings — Professional misconduct — Judicial powers of the governor

JUDGMENT of Kawaley, J

Introductory

1. The disciplinary framework under the Dental Practitioner's Act 1950 is, in early 21^st century Bermudian legal terms, a curious one. The Dental Board is comprised of five dentists appointed by the Governor, acting on the advice of the Minister for Health and Social Services. The Board is given seemingly inquisitorial and judicial powers to investigate, prosecute and adjudicate any matters of professional misconduct which come to its attention in connection with dentists and dental hygienists.

2. In the present case, the Board in early 2003 received inquiries from two of the Applicants' patients as to whether the Second Applicant, a dental hygienist working under the supervision of the First Applicant, was authorised to fill teeth. The Board sought approval from the Ministry to retain counsel, eventually obtained authority to do so, and after receiving legal advice the Board commenced a disciplinary proceeding under the Act. Its counsel, without express statutory authority, seemingly acted as a de facto legally qualified clerk to the Board throughout the hearing in a manner that is expressly authorised by statute for similar disciplinary proceedings in the United Kingdom. This ad hoc use of counsel in an advisory role was a sensible way of seeking to mitigate the failure of the Act to provide fully for a modern disciplinary procedural framework.

3. The Applicants were separately represented by counsel, but no counsel appeared for the ‘prosecution’. The transcript of the hearing records the Applicants as being ‘cross-examined’ by members of the Board. The statutory framework on its face requires the Board to both institute disciplinary proceedings and to adjudicate them, a seemingly flagrant violation of the principle that no man shall be a judge in his own cause. Parliament, of course, is competent to override common law principles. But this common law principle is given constitutional force by section 6(8) of the Bermuda Constitution, and Parliament is not competent to legislate in a manner which contravenes the Constitution. Section 6(8) provides:

‘Any court or other adjudicating authority prescribed by law for the determination of the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or other adjudicating authority, the case shall be given a fair hearing within a reasonable time.’

4. A right of appeal is provided for, to the Governor, whose decision is final. It does not appear on the face of the statute that the Governor is entitled to conduct a full re-hearing on appeal. Nor is it immediately obvious that the Governor as a member of the Executive himself qualifies as an ‘independent tribunal’ for section 6(8) purposes. On appeal to the Governor in the present case, the first ground of appeal was that the Applicants had been deprived of a fair hearing before the Board, because it was constituted in breach of the nemo judex in causa sua rule, or the principle that no man shall be a judge in his own cause, and in contravention of their rights under section 6(8) of the Constitution. The Governor did not rule on this complaint, it being common ground that only this Court was competent to do so on an application under section 15 of the Constitution.

5. It is somewhat surprising, however, as the Governor himself expressed in ruling on the appeal to him in this case, for the Governor to be required to serve as a final appellate tribunal hearing an appeal from the decision of a statutory tribunal; particularly a tribunal concerned with professional matters which have no evident connection whatsoever with His Excellency's constitutional functions.

6. It is against this legislative back-drop, that the Applicants seek to quash the Governor's decision of September 24, 2004 to uphold the Dental Board's decision of May 28, 2004, that the Applicants were guilty of professional misconduct, pursuant to a declaration that the relevant provisions of the Dental Practitioners Act 1950 and the Dental Hygienists Regulations 1950 are inconsistent with section 6(8) of the Bermuda Constitution. By this Court's Judgment of today's date on the Applicants' judicial review application, I have ruled that the Governor's and the Board's decision were lawful and not liable to be set aside, subject to the present application.

7. The Board elected to not participate in the present application, quite rightly taking the view that it was only concerned with the legal position based on the regulatory legislation as enacted, and that any constitutional questions fell to be determined as between the Applicants and the Crown. At the conclusion of the judicial review application, the Applicants and the Respondent were invited to file supplementary submissions on the constitutional point, which I granted the Applicants leave to plead by way of re-re-amendment of their Originating Summons.

8. The constitutional relief sought under section 15 of the Constitution by the Applicants in paragraphs 2 and 3 of their Re-re-amended Originating Summons is twofold:

‘1. A declaration under s. 15 Bermuda Constitution Order 1968 that ss. 13 and 14 of the Dental Practitioners Act 1950 (‘DPA 1950) and reg. 8 of the Dental Hygienists Regulations 1950 (‘DHR 1950’) are in contravention of s. 6(8) of the Bermuda Constitution Order 1968 insofar as they require the same members of the Bermuda Dental Board (‘the Board’) established under s. 5 of the DPA 1950 who instigate and conduct inquiries into the conduct of registered dental practitioners and dental hygienists under the DPA and the DHR 1950 to determine whether they are guilty of misconduct thereby depriving the accused of their fundamental right to an adjudication of their civil rights by an independent and impartial tribunal; and

2. An order setting aside the Board's Decision of 28^th July 2004 on the grounds of the said contravention.’

Legislative provisions

9. The Board is established by section 5 of the Dental Practitioners Act 1950, which provides as follows:

‘Bermuda Dental Board established

5 (1) For the purposes of this Act there shall be established a board of persons (hereinafter in this Act referred to as ‘the Board’) who shall have the powers and perform the duties conferred or imposed upon them by or under this Act.

(2) The Board shall be a body corporate under the name of ‘The Bermuda Dental Board’, with the exclusive right to use that name, and with power to sue and liability to be sued in their corporate capacity by that name in all courts, and with power to have and use a common seal and to renew or vary the same at pleasure.

(3) The Board shall consist of five members, all of whom shall be registered dental practitioners and each of whom shall be appointed by the Governor, acting on the advice of the Minister, to hold office at pleasure: Provided that where a member of the Board is by reason of ill health, absence from Bermuda or other sufficient cause unable to perform his duties as a member of the Board, or where for any reason it appears to the Governor, acting on the advice of the Minister, to be undesirable that he should perform those duties in any particular case, then the Governor, acting on the advice of the Minister, shall appoint a registered dental practitioner to act for that member during the period of his incapacity; and any registered dental practitioner so appointed shall while he is so acting be deemed for the purpose of this Act to be a member of the Board.

(4) There shall be a Chairman of the Board, who shall, subject as hereinafter provided, be appointed annually by the Governor acting on the advice of the Minister from among the members of the Board to hold office until the thirty-first day of December of the year for which he was appointed, and who shall be eligible for re-appointment: Provided that if at any time a person appointed to be Chairman ceases to be a member of the Board, or for any other reason ceases to hold office as such, the Governor acting on the advice of the Minister shall, as soon as may be, appoint from among the members of the Board another person to be Chairman in his stead.

(5) If at any meeting of the Board the Chairman is absent, the members present shall elect one of their number to act as chairman at that meeting.

(6) Three members of the Board shall form a quorum at any meeting.

(7) Every question or matter to be determined by the Board at any meeting shall be decided by a majority of the members present at the meeting.

(8) Without prejudice to anything in section 8 (which section relates to the scale of fees payable to members of the Board who conduct an examination under this Act), fees shall be paid to members of the Board in accordance with the Government Authorities (Fees) Act 1971 …’

10. Section 5(3) does...