1.                  1.Facts of the case.

1.       Sealing of the health care establishments [clinic] by Commission.

·         The Punjab health care commission which is established to ban quackery and provide health care to individuals seal the clinic Of mushtaq ahmed Chaudhry on the date of 4-9-2015

·         and all of those  practioner who are registered under unani act  and hold the diploma from skill development council on the ground of

        I.                                                        1.Quackery

      II.                                                        2.And not registered under Punjab health commission act 2010

2.       Challenge the sealing action of commission by Medical practioner.

After the sealing of clinic the effected practioner challenge the action of commission on ground that.

·         Commission has no legal authority to seal the health care establishments of the medical practioner

3.       Judgment passed against the Commission in district court.

On the date of 20-11-2015 the learned single judge of district court, toba tak Singh passed the judgment that the action of the commission was without the any lawful authority.

·         Reason of judgment

1.       The action of the commission was administrative action which cannot be exercised/ enforceable against any third party.

2.       The commission has no rules and regulations about of sealing so it’s not seem possible that this action exercised on delegated legislation.

4.       Appeal against the judgment by commission.

The commission challenges that judgment in Supreme Court

5.       Case refers to Lahore high court.

·         After appeal the case refer to High court

·         And now for hearing in front of High court for the purpose of judgment

The one petition of the commission and in front of this the other two petition of the

1.       Punjab dental practioner association

2.       Punjab dental practioner association and mushtaq armed Chaudhary

And all these petition which has the same question of dispute like respondent against the commission.

 

2. Questions of dispute.

In front of High court all the petition which are filed against the Commission the subject of all were same like they challenge the

1.       1.Vires/legal authority of PHCA 2010

2.       2.Challenge the sealing action of commission  

3.       3.Provincial government not holds authority to legislate on the subject of federal legislative list.

  So the court framed the two question of dispute to settle out the matter among the parties.

1.       Vires of Health act

2.       Is the commission has authority to seal the healthcare establishment under health act.

3. Arguments on questions of dispute.

A-Argument on the 1st question of dispute.

1.       1.From Respondent side

·         Mr. Muhammad Ahmed Quyum advocate on the side of  dental association and Mushtaq ahmed chaudary challenge the vires of health act on the following grounds

1.       The action of commission under health act is ultra vires.

THE counsel argued that.

The action of commission is under provincial law and against those practioner who are registered under unnai act [Federal law] and the services of those practioner are related to the medical profession which is the subject of federal legislative list means only federal govt has authority to legislate about that’s matter while commission did that action under provincial authority so commission act beyond his authority /ultravires

2.       The action of commission under health act  is unconstitutional

As the action of commission to seal clinic of the practioner of the medical profession

And according to the Entry 11 ,part 2 of the FLL the medical ,legal and all profession are the subject of FLL and here the commission under health act attempt to legislate the medical profession so the act of commission is unconstitutional

3.       The action of commission to seal health care establishment is illegal.

The commission seals the clinic of the practioner on the ground of

1.       Quackery

2.       Not registered under health act

Which is illegal because the practioner are not quack they are qualified and registered under unani act and having diploma from skill development council

Moreover as their services are related to the medical profession and for that they are already registered under unani act so they don’t need further more registration under health act

 

4.       The practioner registered under unani act not need further registration under health act.

The services of the practioner related to the medical profession and for that they are already registered under unani act so they don’t need further more registration under health act

2. from commission side.

Khawaja Assam bin Harris advocate on the behalf of commission favor the action of Commission under health act on the following grounds.

1.      1. The act of commission under health act is intravires.

The counsel argued that

The action of the commission to seal the clinic of the practioner who are registered under unani act is for the sake of health care services and health care services is the subject of PLL  and fall under the object of health act moreover that’s not fall under the scope of medical profession so ,the action commission is intravires .

2.       2.The act of commission under health act is constitutional.

The constitutional history of Pakistan also reveals that the subject of health care services is always the subject of legislation of the PLL so the act of commission is constitutional

3.      3. The action of seal is legal.

The health act empower to ban quackery and improve health care services so all the practioner and establishment which are not registered under health act the commission has power to seal them and that is legal .

4.       4.Registration is required under health act.

Medical profession is just deal to the qualification and the practioner that not deal with the health care establishment, health care service and the service provider these all are the subject of the health act so, if any tabb, doctor want to run clinic, hospital then its must require the registration of that service provider and service provide establishment under health act.

3. from Provincial Govt.

Mr. Anwar Husain additional advocate general argued that.

1.       Health care service is the subject of PLL.

The counsel argued that about of the health care services the provincial govt has authority to legislate and that is proof by constitutional history even tough if in the medical profession or in homeopath has the business of providing health care service then the service provider along with the establishment of service provider all fall in the Domain of PLL.

4. from Federal govt.

On behalf of federal govt Mr.Nasar Ahmed Deputy Attorney General argued that.

1.       1.Health care services are the subject of health act.

The object of the health act to improve health care service and ban quackery so commission on the base of health act has authority to take all necessary steps to accomplish that purpose.

2.      2. Registration under health act not the violation of constitution

Counsel argued that as for the medical practioner the federal govt require their registration under federal law in the same way in related to the health care service the registration and likeness of the service provider and the health care establishment is not the violation of the constitution.

 

 

B- 2nd Question of Dispute

1.       Against the action of the commission about of seal to the health care establishment of the practitioner the counsel argued that.

1. The commission can impose fine on the practioner but not hold the authority to seal them.

2.       The commission can take action only against the quacks not the practioner

    2. Reply from commission side

 

Ø          In front of the objection raised against the commission the commission counsel argued that.

  Counsel argued that the action of seal the clinic of practioner is legal and give following       grounds for that.

1.        1.The act of commission under health act.

 The objective of the commission to ban quackery and provide health care services and according to the  health act

 Every person is a quack who pretend to have those skill of medical etc. which he not have and not registered under PMDC,COUNCIL of tabb and council of homeopath and council of nursing 

 And as these all practitioner are not registered under these relevant laws so fall under definition of quack so the act of sealing is valid one not illegal.

Ø           Reference.

1.       Section 4 of the health act

2.       The regulation/rule issued under sec 40[1] of the health act in 2016

3.       The order of the Supreme Court which passed on the date of 3-6-2018 where the power is given to commission to make sure the registration and licensing of the healthcare establishment and service provider under the health act.

2.       2.The action of seal is carried out according to the rules of natural justice.

   The counsel of the commission argued that the action of the seal is carried out against the clinic of    practioner after following the principle of natural justice.

    Audi alterum partum

‘’ Opportunity to being heard ‘’

 Counsel argued that before to seal clinic the notice is send to every practioner for the purpose that they  come and show their registration under health act but they consider that their registration under unani act is enough and as commission has authority to take action to secure health care services that’s why the action of seal is taken .

3.      3. The action of seal is for the safety of public health.

Ø     The counsel argued that the objective of the commission to secure the public health and for it the commission has authority to take all necessary action and that action of sealing is also carried out under this perspective on the base of preventive measure

Ø     Because the practioner are registered under unani act are not liable for their medical negligence that negate that the health of public in risk because no one hold the any liability in case of damage, loss etc. while the service provider registered under health act are liable to his medical negligence .

Ø     Counsel argued that the action of commission is against quacks not practioner .

 Reason.

Ø     Counsel argued that according to section 2[29] of health act

‘’A quack is a person who pretends to provide health care service and not registered under PMDC, council of Tabb, homeopathy and nursing ‘’

So ,the person whom against the commission take action are also quack because to become practioner they need to be registered under federal Law ,PMDC and to provide health care service they need to be registered under health act as they are not registered under these laws even registered under unani act so are not fall under definition of practioner so the action of commission against them is valid .

 4.objection of the individual petitioner against the action of commission about of seal of their clinic .

Ø     Beside of the Punjab medical dental association and Masha armed Chaudhary the other respondent like Nagma Ashraf and zameer Ali shah raised objection of the authority of Commission about of seal of their health care establishment on the following grounds.

1.       They have entitled to practice dentistry and homeopath because of the many year practice.

2.       They hold the diploma from the skill development council

3.       They are registered under uanni act.

In short their claim based on their Qualification.

Ø     In contrast of the claim of the petitioner against the action of commission on the base of their qualification the advocate Chaudhary Muhammad Umar on behalf of commission argued that .

 As the claim of the petitioner is based on their qualification but counsel argued that the petitioner respective qualification are not authorized under the national training ordinance

Ø     Even the national training ordinance regulate the training of the paramedical courses and the courses of the Allied health profession include the dental technician and hygienist  and after the training of the courses the person are not entitled to practice without the supervision of the senior dentist

Ø     So here the practioner not hold the respective degree to practice that respective profession moreover without training run their separate clinic just on the qualification of diploma and registered under umami act which are not enough to their respective services.

5. Judgment.

Ø       Justice Ayesha Malik decides the matter in favor of the health commission and approves just the petition of the commission and dismisses the all other petition.

Ø       Grounds of judgment.

1.       Constitutional history

By constitutional history of Pakistan that is proof that the health care service is always the subject of legislation of the PLL in all constitution of Pakistan 1956, 1962 and 1973 so, only Provincial got has authority to legislate about that matter and medical profession is the subject of the legislation of the FLL

2.       The scope of health act

The health act   deals with the health care establishment ,health care service provider and health care services so for anyone who want to provide health care service and run health care establishment must need to be registered and licenses by its own and its establishment under health act .

3.       The scope of umami act-

The unani act deals with just about the practioner and about of the qualification which require to enter in that profession but not deals with health care services, establishment and service provider.

4.       Commission holds authority to ban quackery and secure health care.

The commission has power to take all necessary steps to secure health care and ban quackery.