(1984)1984 April 7 [A. Loizou, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION DR. CONSTANTLY LIASIDOU, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE MEDICAL BOARD OF CYPRUS AND/OR THE DEPARTMENT OF MEDICAL SERVICES OF THE MINISTRY OF HEALTH, Respondents. (Case No. 424/79). Medical Registration (Specialist Qualifications) Regulations, 1979— Not ultra vires section 23
(2)of the Medical Registration Law, Cap. 250—Recognition of specialization in Paediatrics—Postgraduate training requiredunder regulations3and4—No violation of Articles 25 and 28 of the Constitution due to absence of tran- 5 sitional provisions in these Regulationsfor those whostarted their specialization under the pre-existing 1963 Regulations. The applicant who graduated in 1974 from the Medical School of Athens University applied in April, 1979, to have her specialization in Paediatrics recognized. Her application was 10 refused by the respondent Medical Board on the ground that she had not completed post-graduate training of a duration of four years in the branch of Paediatrics asprovided by regulation 3(b)* of the Medical Registration (Specialist Qualifications) Regulations, 1979; and hence this recourse. From the certificates 15 produced by applicant before the respondents her post-graduate training was for two years as a physician and only for 27 months for her specialization in Paediatrics. Counsel for the applicant mainly contended: (a) That the Medical Registration (Specialist Qualifications) * Regulation 3(b) is quoted at pp. 483-484 post. 480 20 Uasidou v. Republic 3 CX.R. Regulations, 1979 are ultra vires section 23
(2)of the Medical Registiation Law, Cap. 250. 5 10 15 (
- b)That on the basis of regulations 3 and 4 of the above Regulations she had the required post-graduate training of four years in a University hospital which included theoretical teaching and practical training on a syitematic basis with compulsory participation of the trainee in the hospital activities. (
- c)That the 1979 Regulations have no transitional provisions for those who started their specialization under the pre-existing Regulations of 1963; and that in this way a differentiation is made which is arbitrary to such an extent that renders the said Regulations unconstitutional as offending Articles 28 and 25 of the Constitution, which articles protect the equality before the laws and the freedom to exercise a profession respectively. Held,
(1)that the 1979 Regulations are not ultra vires section 23
(2)of the Medical Registration Law, Cap. 250. 20 25 30
(2)That on the true construction of regulations 3 and 4, read together, the four years postgraduate training must be in respect of the specialization claimed by an applicant and not the aggregate of postgraduate training for different branches of medicine.
(3)That there was no violation of Article 25 or 28 of the Constitution by the said regulations; that there does not appear to be any unequality of treatment between the applicant and any other person who wasin the same position as herself and there is no unwarranted restriction for the exercise of her profession offending Article 25 of the Constitution; accordingly the recourse must fail. Application dismissed. Recourse. 35 Recourse against the refusal of the respondents to recognise applicant's specialisation in Paediatrics. A. S. Angelides, for the applicant. R. Gavrielides, Senior Counsel of the Republic, for the respondents. Cur. adv. vult. 481 Uasidou v. Republic
(1984)A. Loizow J. read the following judgment. The applicant graduated in 1974from the Medical School ofAthens University. On the 18th January, 1979she applied for registration in Cyprus as a Medical Practitioner under the Medical Registration Law, Cap. 250. 5 On the 19th April 1979,she applied to have her Specialisation in Paediatrics recognized. There were attached to her application threecertificates. Onedated the28th March, 1979(Appendix 2), which is the "Decision granting (to her) a permit for the title of Medical Specialization in Paediatrics". The second, a !0 certificate (Appendix 3), from Dr. Antonios Billis, Director of the Second Physicians Clinic of the State General Hospital of Athens that she had worked as an Internal Assistant, on payment, from the 19th September 1974to the 21st September 1976 for the purpose of obtaining the Specialisation of Physician, and 15 the third a certificate dated the 14th December 1978 (Appendix 4), from the Second Paediatric Clinic of the Children's Hospital of Athens University from Professor Constantinos Papadatos, that the applicant attended the said Clinic, which is under his directorship in order to cover the required period for acquiring 20 the Specialisation in Paediatrics from the 27th September 1976 to the 12th December 1978,during which period she was absent as stated therein for 75 days on account of a strike and leave withoutpaywhich wascompleted inordertocoverthefull period of specialisation. Her application was refused by the Medical 25 Council onthe ground that shehad not completed post-graduate training of a duration of four years in the branch of Paediatrics as provided by the Regulations in force and their decision was communicated to her by letter of its Chairman dated the 29th August 1979, (Appendix 5). 30 On the 18th September, 1979, the Medical Council received an undated letter from theapplicant (Appendix 6)by which she was seeking a re-examination of her application. She asked that thefollowing should betakenintoconsideration,
(1)that the decision was not communicated to her in time.
(2)(a), That she 35 had completed the required in Greece period of practice in the University Hospital, Paediatric Clinic, on the IOth December 1978. (
- b)That she was successful in the relevant examinations on the 6th March 1979. (
- c)That the opinion of the Central Scientific Council for Medical Personnel on the basis of which 40 482 3 C.L.R. 5 Liasidou v. Republic Λ. Loizuu J. she was given by the Administration of Attica the title of Spe cialist in Paediatrics, was given on the 16th March, 1979, and
(3)that it is impossible for her to return to Greece and complete the required by the new Regulations period for Specialisation as on the one hand she had already been granted the title of Specialist and on the other hand she had signed an undertaking that she was not entitled to work in Greece any longer. The Regulations referred to in the letter of the Chairman of the Medical Board are the Medical Registration (Specialist 10 Qualifications) Regulations, 1979, published in Supplement No.3, Part Ito the Official Gazette of the Republic of the 23rd March, 1979 under Notification No. 54 pp..149 -
- In so far as relevant they read: 15 20 25 "
- Τάπροσόνταάτιναπαρέχουσι ιό δικαίωμα els πρακτήρα ίατρόν όπως περιγραφή εαυτόν ώς είδικόν ή όπως καθ' οίονδήποτε τρόπον χρησιμοποιή τήν λέξιν 'εΙδικός' είς οιαν δήποτε είδοποίησιν έκτιθεμένην ή δημοσιευομένην δυνάμει τοϋ άρθρου 22 τοϋ Νόμου, είναι τά ακόλουθα: Μεταπτυχιακή έκπαίδευσις είς τον οίκεϊον κλάδον της iaτρικής διαρκείας ουχί βραχυτέρας της καθοριζομένης έν τοις έφεξης δι' έκάατην των αναφερομένων είδικοτήτων: (α) Πέντε έτη είς τήν περίπτωσιν των ακολούθων είδι κοτήτων. (β) Τέσσερα έτη εις τήν περίπτωσιν των ακολούθων είδικοτήτων: Παιδιατρική 30
- "Απαντες οι προ της ισχύος τών παρόντων Κανονισμών θεωρούμενοι ώς έχοντες τά νόμιμα προσόντα ίνα περιγραφωσι εαυτούς ώς 'είδικούς* ή ίνα χρησιμοποιώσι τήν λέξιν "εΙδικός* είς είδοποίησιν έκτιθεμένην ή δημοσιευομένην δυνάμει τοϋ άρθρου 22 τοϋ Νόμου,πρακτηρες Ιατροί θά έξακολουθήσωσι νά θεωρώνται οτι κέκτηνται τά τοιαύτα προσόντα και έάν ακόμη δέν κατέχωσι τά Οπό τού Κανονισμού 3 ανα γραφόμενα προσόντα". 483 A. Loizou J. Liasidou v. Republic
(1984)1η English they read: " 3 . The qualifications which entitle a medical practitioner to describe himself as specialist or in any way to use the word 'specialist' in any notice displayed or published by virtue of section 22 of the Law are the following: 5 Post-graduate training in the relevant branch of medicine of a duration not shorter than that specified hereinafter for each of the mentioned specialisations: (
- a)Five years in the case of the following specialisations: (
- b)Four years in the case of the following specialisation: 10 Paediatrics. 5. All medical practitioners who before the coming into force of these Regulations weredeemed as having the lawful qualifications in order to describe themselves as 'specialists' or to use the word 'specialist' on a notice displayed or pu- 15 blished by virtue of section 22 of the Law, shall continueto be deemed as possessing the said qualifications even if they do not possess the qualifications prescribed by Regulation 3." 1 need not reproduce here verbatim regulation 4. It is sum- 20 cient to say thatit provides that for thecalculation of the periods specified in regulation 3, there may be taken intoconsideration also periods of suchtraimngin morethanone University Centres Training Hospitals in which training of doctors takes place or in other Training Centres which might be approved by the Medical 25 Council. These regulations repealed the Medical Registration (Spe cialist Qualifications) Regulations of 1963, published in Supple ment No. Ill, part ], to the Official Gazette of the Republic of 1963 underNotification No.429. Regulation 3 thereof provided 30 as follows: "Τά προσόντα άτινα παρέχουσι το δικαίωμα είς πρακτήρα ίατρόν όπως περιγραφή εαυτόν ώς 'είδικόν' ή όπως καθ' οίονδήποτε τρόπον χρησιμοποιή την λέξιν 'είδικός* είς οίαν484 3 C.L.R. Liasidou v. Republic A. Loizou J. δήποτε είδοποίησιν έκτιθεμένην ή δημοσιευμένην δυνάμει του άρθρου22 τοΰ Νόμου,είναι τάακόλουθα: 5 ί0 (α) πτυχίον, δίπλωμα, τίτλος ή πιστοποιητικόν είδικού «αηθέν μετά τό πέρας των Πανεπιστημιακώνσπουδών άλλως ή δι' αλληλογραφίας,παρέχον τό δικαίωμαείς τόν κάτοχον αυτού όπως αναγνωρίζεται ώς είδικός έν τ φ είδικφ τούτω κλάδω τής Ιατρικής, είς τήν χώραν ένθα τούτο έκτήθη,καΐ όπερ παρέχεται υπό τινός Πανεπιστηρίου, Κολλεγίου, ή 'Ιατρικής Σχολής, ή τό πτυχίον, δίπλωμα, τίτλος, ή πιστο ποιητικόνέκηρύχθηάνεγνωρισμένονπροσόν διάτουςσκοπούς τοϋ άρθρου 7
(1)(γ)(ι) τοΰ Νόμου ή„_.". In English they read: 15 20 25 "The qualifications which entitle a medical practitioner to describe himself as 'specialist' or in any way to use the word 'specialist' in any notice exhibited or published by virtue of section 22 of the Law are the following: (
- a)decree,diploma, title orcertificate of specialist acquired after the completion of university studies otherwise than by correspondence giving the right to its holder to be recognized as specialist in this special branch of medicine, in the country where same was acquired, and which is given by a University College or Medical School,of which the degree,diploma,title,or certificate has been declared to be a recognized qualification for the purposes of section 7(l)(c)(
- i)of the Law or . . . . " The aforesaid Regulations were made under the provisions of section 23
(2)of the Law and which as amended by Law No. 53 of 1961 reads as follows: 30 35 "No medical practitioner shall describe himself as a 'specialist' or in any way employ the word 'specialist' in any notice displayed or published under section 22 unless he satisfies the Medical Council that he is inpossession of such special qualifications as may be specified by the Medical Council with the approval of the Council of Ministers, as would entitlehimto be regarded as a specialist in any branch or specialisation of the medical profession in which he practices". I may conveniently deal here with the argument advanced on 485 Λ. Loizou J. Liasidou v. Republic
(1984)behalf of the applicant that the aforesaid Regulations are ultra vires the Law, which I do not consider as a valid onein view of the clear and unambiguous words of the aforesaid subsection 2 of section 23 which empowers the Medical Council with the approval of the Council of Ministers to specify the special qua- 5 lifications that entitle a medical practitioner to be regarded as a 'specialist' in any particular branch of the medical profession. It has been the case for the applicant that on the basis of re gulations 3 and 4 hereinabove set out she had the required post graduate training of four years in a University hospital which 10 included theoreticalteachingand practical training on a systema tic basis with compulsory participation of the trainee in the hospital activities. This assertion onthepart of the applicantis notborn out from the certificates she produced to the respondents as her post- 15 graduate training was for two years as a physician and only for 27 months for her specialisation in Paediatrics, and on the true construction of regulations 3 and 4, read together, the four years post-graduate training must be in respect of the speciali sation claimed by an applicant and not the aggregate of post- 20 graduate training for different branches of medicine. Further and in the alternative it is the allegation of the appli cant thatshe satisfied theprerequisites of regulation 5, inasmuch as she sat for her examinations for her specialisation in Paedia trics on the 6th March 1979 and the results weremade known on 25 the 16th March, 1979, that is before thecomingintoforce of the new Regulations of 1979, which came into force on the 23rd March on that year. I am afraid, 1cannot agree with this sub mission as the decision, (Appendix 2), by which the appropriate under the relevant GreekLaw,organ,gaveher her permitfor the 30 title of Medical Specialisation in Paediatrics was taken on the 28th March 1979, as it appears from Appendix 2,from which it should be observed thattherewereothermatterstobe considered before such permit was granted other than the successful taking of the examinations which was only one of the prerequisites. 35 To my mind the applicant could not be considered as posses sing the specialisation of Paediatrics before the decision on the subject was taken on the 28th March 1979. 486 3 C.L.R. Liasidou v. Republic A. Loizou J. Thereisnothing therefore, onthematerial before me, warrantingtheclaim ofthe applicant that the respondent Medical Council failed to carry out a due inquiry into the matter. It has been further contended that the new Regulations of 5 1979 have no transitional provisions for those who started their specialisation under the preexisting Regulations of 1963. In this way a differentiation is made which is arbitrary to such an extent that renders the said Regulations unconstitutional as offending Articles 28 and 25 of the Constitution, which Articles 10 protect the equality before the laws and the freedom to exercise a profession respectively. I see no violation of either Article by the said regulations. There does not appear to be any unequality of treatment between the applicant and any other person who was in the same position as herself and there is no unwar15 ranted restriction for the exercise of her profession offending Article 25 of the Constitution. For all the above reasons this recourse is dismissed as the sub judice decision was reasonably open to the respondent Medical Council and was taken in accordance with the relevant 20 Law and Regulatioas and the general principles of administrative Law. In the circumstances, however, there will be no order as to costs. Recourse dismissed. No order as to costs. 487