Mise aux Point
Mise Aux Point on press article which appeared on sunday times 6th Jan 2019
- Further to the publication of a news item in Sunday Times Newspaper of 6 January 2019, which contains factually inaccurate matters about the proceedings of the Medical Council, the Medical Council is informing the general public about the inaccuracies in the said article.
- The Council wishes to set the record straight as follows:
a. Dr I. Thacoor was suspended for 12 months rather than 6 months as inaccurately reported by the newspaper;
b. The decision concerning Dr A.Y. Boodhoo was taken after voting and not as inaccurately stated in Sunday Times: “les members n’ont pas eté appélés a passer au vote”.
c. Dr A.Y. Boodhoo was sentenced to 9 months imprisonment by the Intermediate Court on a charge of involuntary homicide by imprudence and this was reduced to 6 months by the Supreme Court. To the knowledge of the Medical Council, this is one of the very rare cases where a doctor was prosecuted and convicted for involuntary homicide by imprudence. This case was not merely a case of medical negligence but it was a also case of criminal negligence;
d. it is apposite to note that the Supreme Court in the case of Boodhoo v State 2016 SCJ 525, on appeal observed, inter alia, as follows:
“The learned Magistrate cannot be blamed for his decision that the appellant had failed to exercise the degree of care and skill expected of him in the discharge of his professional duties and for his finding that “the magnitude of the injuries sustained by the deceased in the hands of the accused which led to her death clearly indicate that the faute of the accused is not a minor one but in fact is faute grossière.
(…)
We fully concur with the rationale behind the custodial sentence which we do not find to be wrong in principle. As rightly pointed out by the learned Magistrate, the appellant, a fully qualified Specialist in Obstetrics and Gynaecology, has committed a “faute grossière” in the discharge of his professional duties. The nature of the injuries caused to the patient during the operation speaks volumes on the lack of skill and competence displayed by the appellant. It is unimaginable that a simple Caesarean operation without any complications or difficulties could have given rise to such serious injuries thus leading to the death of a patient. It is indeed a tragedy for not only the life of a patient has been taken away, but also a whole family has been affected.
(…)
We take the view that having regard to the whole circumstances of the case, a custodial sentence is richly deserved. Learned Counsel for the respondent referred us to the case of R v Bala Kovvali [2014] 1 Cr. App. R. (S.) 33, in which the Court of Appeal maintained a sentence of two and a half years’ imprisonment passed on the appellant who had pleaded guilty to manslaughter by gross medical negligence.”
e. it is clear from the above the newspaper was not comparing like with like when it maliciously attempted to compare the cases of Dr Thacoor and Dr A.Y. Boodhoo. One of the doctors, i.e, Dr A.Y. Boodhoo was prosecuted for a case of criminal negligence and found guilty, a finding which was maintained on appeal. Further, the observations of the Magistrate and of 2 judges of the Supreme Court on the professional conduct of Dr. Boodhoo speak for themselves. Dr Boodhoo sought leave to appeal to the Supreme Court and on 27 September 2018, the Supreme Court refused leave (A.Y Boodhoo v The State 2018 SCJ 316). Dr Boodhoo may only challenge the decision of the Supreme Court if he obtains special leave from the Judicial Committee of the Privy Council. Should Dr Boodhoo obtain special leave and should his appeal be dismissed, he will be imprisoned for 6 months.
f. There is nothing in law which prevents the Medical Council from taking regulatory action against Dr. Boodhoo pending determination of his case by the Judicial Committee of the Privy Council in the event he obtains special leave.
3. You may also note that the learned Judges of the Supreme Court approved the decision of the learned Magistrate of the Intermediate Court to inflict imprisonment on Dr. A.Y Boodhoo as follows:
“The learned Magistrate further observed that it is not only a life which has been taken away by the negligent actions of the appellant but that also a child has been for ever deprived of maternal love, care and attention. The learned Magistrate then considered the penalty provided for the offence of involuntary homicide by negligence under sections 239(1) and 12 of the Criminal Code, which is imprisonment not exceeding 5 years and a fine not exceeding Rs 50,000 and found that having regard to the whole circumstances of the case and the manner in which Mrs Bava Saib lost her life, only a custodial sentence would be an appropriate punishment.”
The Medical Council sincerely hopes that the newspaper which claims to speak on behalf of the medical profession will not also now claim to have legal expertise and will not disagree with the judgment of the Supreme Court or argue that the legal profession has reservations about the sentence of imprisonment meted out to Dr. A.Y Boodhoo.