P L D 2019 Lahore 429 (PLP)

MUHAMMAD FARRUKH IRFAN KHAN, J.

Through this single judgment, we intend to decide above captioned writ petition as well as W.Ps. Nos.7790/12, 7789/12, 15532/13, 13575/14 and 7887/16 as common questions of law and facts are involved in all these writ petitions.

2. Facts of the case are that the private respondents filed complaints against the petitioners before the learned Consumer Courts claiming damages for their alleged medical negligence. The petitioners filed applications for rejection of complaint on the grounds that after promulgation of Punjab Health Care Commission Act, 2010, the Consumer Court has lost jurisdiction to adjudicate upon the matter. The learned Consumer Court dismissed all these applications. Being aggrieved the petitioners filed these writ petitions which were fixed before our learned brother Shams Mehmood Mirza-J, before whom the learned counsel for the petitioners referred an unreported judgment of learned Single Judge passed in W.P.No.1143 of 2013 titled Dr. Zaheer Ahmad Qureshi v. Presiding Officer etc. in which it was observed that the Punjab Health Care Commission has exclusive jurisdiction to adjudicate upon the matter. However, the learned Judge seized with the matter while disagreeing with the observations rendered in the above writ petition was of the view that only Federal Courts could try and adjudicate upon disputes relating to medical profession whereas the Punjab Consumer Protection Act, 2005 and Punjab Healthcare Commission Act, 2010 are provincial laws. The learned Judge referred the matter to the Hon'ble Chief Justice for fixing the same before the Division Bench for rendering a binding judgment. Hence, these writ petitions have been fixed before this Bench.

3. We have heard the arguments advanced by the learned counsel at length and also gone through the record.

4. The preamble of the Punjab Healthcare Commission Act, 2010 (Act) reads as under:-- "Whereas it is expedient to provide for establishment of the Punjab Healthcare Commission, to make provisions for the improvement of quality of healthcare services, to ban quackery in all its forms and manifestations and to provide for ancillary matters." The Act ibid has been brought for the improvement of quality of health services and ban quackery in the Punjab in all its forms and manifestations.

5. Section 4 of the Act deals with the functions of the Healthcare Commission. Subsections 2(c) and (e) of section 4 read as under:- (c) Monitor and regulate the quality and standards; (e) Enquire and investigate into maladministration, malpractice and failures in the provision of healthcare services and issue consequential advice and orders; Similarly subsection 7 of the said section provides as under:-- "Notwithstanding anything contained in any other law, the Commission may

(a) On a complaint by an aggrieved person; or (b) On a complaint by any aggrieved healthcare service provides; and shall-- (c) On a reference by the Government or the Provincial Assembly of the Punjab; or (d) On a motion of the Supreme Court of Pakistan or the Lahore High Court made during the course of any proceedings before it, Undertake investigation into allegations of maladministration, malpractice or failures on the Part of a healthcare service provider."

6. It is thus abundantly clear that Healthcare Commission is empowered to enquire and investigate any maladministration; malpractice inter alia on the part of "healthcare service provider". Definition of "healthcare service provider" has been given in subsection (xvii) of Section 2 of the Act ibid which is as under:- "Healthcare service provider" means an owner, manager or incharge of a healthcare establishment and includes a person registered by the Medical and Dental Council, Council for Tibb, Council for Homeopathy or Nursing Council."

7. It is an admitted fact that all the petitioners are registered with the Medical and Dental Council constituted under the Medical and Dental Council Ordinance, 1962, therefore, in view of the provisions of law reproduced supra, in case of any maladministration/ malpractice on their part the commission is vested with power to investigate on the allegations and impose penalty according to the spirit of Act.

8. Section 29 of the Act explicitly bars anyother legal proceedings against a "healthcare service provider" except under this Act which is reproduced hereunder for ready reference:- "

29. Immunity.

No suit, prosecution or other legal proceedings related to provision of healthcare services shall lie against a healthcare service provider except under this Act."

9. The Punjab Consumer Protection Act, 2005 is applicable for protection and promotion of rights and interests of all kinds of consumers but the Punjab Healthcare Commission Act, 2010 exclusively deals with the matter for improvement of quality of healthcare services related to treatment, diagnosis and care. It regulates the "healthcare service provider" being the person who is responsible for the provision of the services. It is well settled canon of interpretation that where there is a conflict between a special law and a general law, the former will prevail over the latter. Reliance is placed on case reported as Syed Mushahid Shah and others v. Federation Investment Agency and others (2017 SCMR 1218).

10. As far as the observations of our learned brother Mr. Justice Shams Mehmood Mirza that medical profession is the Federal subject and only Federal Courts can try and adjudicate upon disputes relating to medical profession, let us have a glance over Constitutional history of the medical profession and public health. Since the promulgation of Constitution, medical profession and public health, sanitation, hospitals and dispensaries have been two separate and distinct legislative subjects. In the Constitution of 1956 the subject of medical profession was included in Entry 1 of the Concurrent Legislative List ("CLL") and public health, sanitation, hospitals and dispensaries were placed under entry No.26 of the Provincial Legislative List ("PLL"). In the Constitution of 1962 neither the subject of medical profession nor public health figured in the Third Schedule of the Constitution which provided for matters falling in the executive domain of the Federation and enumerated the powers of the Federal legislature. Therefore, subject of medical profession and public health fell within the domain of Proincial legislature in the said Constitution. Under the interim Constitution of 1972 medical profession was again included in the CLL thereby empowering the Federal as well as the Provincial legislatures to make laws regarding the same whereas public health, sanitation, hospitals and dispensary figured in Entry 30 of the PLL giving exclusive powers to the Provinces to make legislation in this behalf. In the Constitution of 1973, prior to the 18th Amendment medical profession was item 43 in the CLL and the subject of public health was neither in the FLL nor in the CLL, hence fell within the domain of the Provincial. Government. After the 18th Amendment medical and legal profession is found in Entry 11, Part 2 of the FLL being a Federal subject and since the subject of public health, sanitations, hospitals and dispensary was not included in the FLL it means that this subject falls in the domain of Provincial Government. The above history of our constitutional journey shows that medical profession and public health, sanitation hospitals and dispensary have been two different and distinct subjects from the very inception. It also shows that Constitutional mandate requires the medical profession be governed by the Federal Law and matters related to public health, sanitation, hospitals and dispensary be regulated by the Provinces.

11. No doubt the medical profession is a Federal subject but it is only to the extent of regulating and educational qualifications and uniformity of standards in training and qualification for the purposes of education and entry into the profession. In this regard, the Pakistan Medical and Dental Council Ordinance, 1962 regulates the minimum standards of higher educational qualification in medicine and dentistry. It recognizes all medical and dental qualifications whether obtained in Pakistan or outside the country. It calls for the registration and licensing of medical and dental practitioners and all matters related to the establishment and functions of medical and dental institutions including their recognition are regulated by the PMDC. Hence any person professing to be a medical or dental practitioner must be recognized, registered and licensed with the PMDC. It also regulates the institution from which the professional degree for qualifying as a doctor or dentist is obtained. However, this Ordinance does not regulate any of the heaithcare services or establishments which will be used by the medical or dental practitioners during the process of providing medical or dental services, therefore, it can safely be concluded that healthcare services, establishment and service providers do not fall under the subject of medical profession, as such being a provincial subject are liable to be tried and adjudicated upon by the provincial law. Therefore, we are unable to subscribe to the view of our learned brother Mr. Justice Shams Mehmood Mirza.

12. For what has been discussed above, we are persuaded to hold that Healthcare Commission is the only competent forum to investigate into the allegations of maladministration or malpractice by a health service provider and the Consumer Court has no jurisdiction to adjudicate upon such matters. Resultantly, all these writ petitions are allowed and the complaints pending before the learned Consumer Court are directed to be returned for its presentation before the appropriate forum. KMZ/R-11/L Petitions allowe