- Useful in dispute resolution, clinical assessment, obtaining patient consent
The application of principles of natural justice transcend the boundaries for formal inquiry processes while their moral basis and conceptual value are of immense value in the clinical practice in dispute resolution, clinical assessment, and obtaining consent from patients.
These observations were made in an article on the ‘Principles of natural justice, their relevance and importance to doctors’ which was authored by A. Dissanayake (Senior Lecturer in Medicine at the Ruhuna University and Consultant Physician) and S. Goonesinghe (Consultant Urological Surgeon at the Karapitiya Teaching Hospital, and attorney-at-law) and published in the Ceylon Medical Journal's 66th Volume's Second Issue in December, 2021.
In the medical curriculum, the teaching of law is restricted to learning a few elementary aspects of medical jurisprudence which deal with the application of scientific and medical knowledge to legal problems such as inquests. In general, medical law deals with medical negligence, consent, pregnancy related issues (e.g. abortion), assisted reproduction, organ donation, dying, death, etc.
The principles of natural justice, which is a key area coming under administrative law, are distinct from medical law. Administrative law, according to H.W.R. Wade and C. Forsyth's ‘Administrative law’ keeps the powers of the Government within their legal bounds. This area of law is vital to medical practitioners in administrative inquiries in different settings.
Clinicians and academics are, during the course of their professional lives, called upon to hold administrative positions of varying degrees of responsibility, be it as an institution head, department head, ward consultant or postgraduate trainer. These may be in different settings such as hospitals, the Department of Health, universities and the Medical Council.
In the course of the discharge of these duties, they invariably get involved in the conduct of hearings on disciplinary matters and other purported inappropriate conducts of those serving under their administration. The errant medical student, the difficult registrar or the troublesome junior colleague in the department are experiences that many face. On the other hand, they may themselves be the subject of an inquiry. Some institutions may have procedures for inquiries laid down whilst others may not. Whilst complying with institutional and statutorily defined procedures, the person who holds administrative authority is expected to adhere to the principles of natural justice. No institution can conduct an inquiry in an ad hoc or arbitrary fashion without following these basic tenets of administrative law. Even when institutional procedures are clearly laid down, if they are at variance with the tenets of administrative law and the principles of natural justice, the institutional procedures will not be valid if challenged in a court of law by an aggrieved party.
The principles
The principles of natural justice bring forth the relationship between the common law and moral principles. This nexus with morality gives it a high level of validity and acceptability. According to F.F. Shauer's ‘English natural justice and American due process; An analytical comparison’, having originated in the English legal system, these principles have become universal values following adoption by other legal systems. The principles aim to achieve a just end using just means. That is to ensure procedural fairness and a fair decision. There are two fundamental principles of natural justice.
1st principle: The right to a fair hearing
Procedural fairness must be ensured. The first principle of natural justice is audi alteram partem – ‘Hear the other side’. This emphasises that both sides must be heard and that the person under scrutiny should be given the opportunity to state his/her side of the story. This principle ensures a right to a fair hearing. The adoption of the following steps will ensure that the procedure is fair.
(a) The person facing the procedure has a right to know in advance the alleged charges or misdemeanours. The factual basis and any documentary evidence need to be provided. Preferably, these communications need to be provided in writing. The often adopted practice of requesting a person to appear for an inquiry without informing them what the charges against them are is not acceptable. It is essential to present them with a charge sheet or a similar document prior to the enquiry.
(b) A reasonable time period must be given to prepare a response. It is not unknown to simply request the person to be present at an inquiry, inform the charges there and expect an immediate response. The benefit of being provided the details of the charges will be of little value unless sufficient time is provided to prepare an answer. The aim should always be to ascertain the truth and not tricking the person facing the inquiry into giving compromising answers. If indeed the charges are presented for the first time at the inquiry, the person must be given another appointment date, after a suitable time interval, to return to provide answers.
(c) The person must be provided with the opportunity to present his/her own side at the hearing, either verbally or in writing. He/She must be given an opportunity to fully present his/her side of the story without coercion or intimidation. Clarifications may be sought by the inquirers permitting sufficient opportunity for the person to respond. The clarifications sought have to be aimed at ascertaining all the relevant facts and not at fixing the person. Insinuations, innuendos and personal insults pertaining to the general character of the person and any matters outside the particular charges being inquired into, should be avoided.
(d) The facts presented and clarifications made by the person need to be documented and presented again to the person to verify that the written document accurately reflects what the person stated. Once that is agreed upon, he/she may be requested to place his/her signature in the document by those conducting the inquiry. If the proceedings are to be recorded in the electronic form, this must be informed to the person at the beginning of the inquiry.
(e) Ultimately, once the inquiry is over, the decision made by those who conducted the inquiry must be conveyed to the person in writing, setting out adequately the reasons for arriving at it. The obligation extends to appropriate timing too. A timely decision is essential as an inordinate delay may cause an injustice to the person. An undergraduate or postgraduate trainee’s opportunity to complete an examination may be jeopardised by a delay in arriving at a decision. This would, in effect, result in a dual punishment. As noted in T. Sourdin and N. Burstyner's "Justice delayed is justice denied", justice delayed is indeed justice denied.
The Sri Lankan Supreme Court (SC) case of Karunadasa vs. Unique Gem Stones Limited., and Others exemplifies the importance of giving reasons concerning a decision that has been arrived at. In this case, it was held by President's Counsel and Justice Mark Damien Hugh Fernando that “Natural justice also means that a party is entitled to a reasoned consideration of his/her case; and whether or not the parties are also entitled to be told the reasons for the decision, if they are withheld, once judicial review commences, the decision may be condemned as arbitrary and unreasonable”.
(f) The sanction or punishment has to be reasonable, in keeping with the shortcoming or misdemeanour proven in the inquiry. For instance, to repeat an entire clinical training of a postgraduate trainee for having one misdemeanour may not be justifiable. Equally importantly, sanctions cannot be imposed even if the decision makers feel that there has been an offence which could not be proved with the available evidence. Just as clinical decisions are made, administrative decisions also need to be scientific and evidence based. If the offence cannot be proven and the person is exonerated of the charges, imposing a punishment thereafter is procedurally wrong and amounts to a travesty of justice.
If academic and clinical leaders adopt the above six measures in an inquiry, the highest standards of procedural fairness can be achieved. The possibility of courts of law reversing the decisions as well as sanctioning inquiring members for inappropriate conduct will lessen.
2nd principle: The rule against bias
The second principle of natural justice relates to how a fair decision is arrived at, once the fair procedure is in place. It is the principle against bias, nemo iudex causa sua – ‘No male/female, a judge in his/her own cause’. This principle fundamentally is a rule against bias. It emphasises impartiality. The obligation is to ensure that those who judge and provide the final decision are unbiased, objective and arrive at a fair decision. Those in the inquiry panel must be knowledgeable and competent to decide on the matter being enquired into and be unbiased. They should not be in anyway having a personal interest in either the complainant or the person facing the inquiry. The person who decides must not be or fairly suspected to be biassed. Bias, as explained in ‘Halsbury’s laws of England’, may be actual, imputed or even apparent.
1. Actual bias is when the decision maker is, as pointed out in M. Zubair and S. Khattak's "The fundamental principles of natural justice in administrative law", motivated by a personal like or dislike against or in favour of the person facing the inquiry. For instance, a trainer with whom the difficult registrar worked with earlier, should not be a decision maker.
2. Imputed bias is when the decision maker either represents the complainant party or stands to personally benefit from the outcome. The next in line for the post currently occupied by the person facing the inquiry, should not be a decision maker as he/she stands to benefit directly if the person is judged to have done a misdemeanour.
3. Apparent bias is the one which will be most difficult to avoid. The decision maker must appear as unbiased, to a reasonable minded outsider. For instance, selecting as decision makers colleagues of a complainant consultant may give rise to an apparent bias.
The adherence to principles of natural justice has benefits for all the parties. For the consultant or trainer or administrator, it provides a foundation and guidance to act fairly. Fairness lies at the core of the values of human conduct. For the person facing an allegation, it increases confidence that a fair decision could be expected from the administrative system and the administrator. If the outcome of the inquiry is felt to be unfair, the person subjected to the inquiry and facing sanctions or punishment, may exercise the right to challenge the findings at a relevant legally defined appellate body or in a court of law. Violations of or deviations from the principles of natural justice in making administrative decisions form an important basis for the annulment of such decisions during judicial review. The broadening of the scope of the principles of natural justice has made them closer to fundamental rights (FR). Article 140 of the Constitution of Sri Lanka vests the authority of issuing different types of writs in cases of administrative violations with the Court of Appeal (CA). However, there is a current trend of seeking redress through the FR jurisdiction of the SC rather than seeking traditional writs for administrative violations from the CA. Hence, from the institution's perspective, it lessens the possibility of the person facing the inquiry subsequently seeking a judicial review of the decisions perceived as ‘unfair’.
Most importantly, following these principles helps to facilitate a just and fair outcome. Above all, all are obliged to respect and abide by the principles of natural justice on moral and legal grounds.
The abridgement of natural justice
However, there can be situations where the principles of natural justice can be excluded or limited by laws. From a Sri Lankan context, such statutory abridgements can be challenged only before they are passed by the Parliament while in some other countries, unfair statutes can be annulled by courts of law. There are instances where courts could accept the exclusion of the fairness afforded by these principles under certain circumstances, e.g. the enforcement of quarantine to prevent the spread of a disease as has been witnessed during the Covid pandemic. Mask mandates and limitations and restrictions on persons without vaccination may be legally enforced in the future as opined in M. Graves's "Waiver of natural justice".
Principles of natural justice in the medical practice
Although principles of natural justice formally form a key and fundamental component of procedural propriety in inquiries, they can be used in routine clinical practice as well. Their foundation based on morality, affords the principles high acceptance, recognition and respect.
In a situation of a dispute between doctors or doctors and other categories of staff, these principles would help in conflict resolution. The application of the rule against bias and fair adjudication (hearing) by clinicians outside a formal inquiry setting will help to bring harmony in the clinical milieu. Most such disputes unfortunately tend to end up in union actions with their ensuing repercussions. There may be instances of complaints against medical staff by patients. The lead clinician will need to hear both sides of the story, take fair, reasoned and transparent decisions, maintain good communication and mediation between the disputing parties, and strengthen systems in order to prevent the recurrence of similar problems. This process is likely to inspire confidence in the patients and the medical staff that a fair hearing has been given to their grievances and to prevent complaints to higher administrative authorities and courts of law which could be distressing to all parties concerned.
The principle of a fair hearing (‘hear both sides’) can be adapted in the clinical enquiry process as well. This calls for a comprehensive patient assessment. The thoroughness of delving into all aspects of the clinical history and the physical examination - rather than taking a one sided and biassed view in the diagnostic pathway - will help the patient.
The imputed right to know the reason for a decision that comes under the fair hearing rule has a medico-legal value in the consenting process. There are three key elements for an informed consent obtained from a patient to be valid – the patient should be competent, the patient should have received sufficient information about the decision, and the consent should be voluntary, without any coercion or manipulation. The right of the patient to know the reason for a clinical decision can be considered to come within the element of sufficient information.
The stringent adherence to principles of natural justice ensures equity and justice to the concerned parties and it enhances both better decision making and greater respect for the integrity of the decision maker. The ignorance of the law and due process will not be a valid defence if challenged in a court of law. One need not have formal legal education to understand and apply principles of natural justice in the discharge of administrative responsibilities. It is an administrative and moral duty. Following principles of natural justice is not a virtue. It is a moral necessity.
“It is not merely of some importance, but of fundamental importance that justice should not only be done, but should manifestly be seen to be done,” the then Chief Justice of England and Wales, Gordon Hewart noted in the High Court of Justice case of R vs. Sussex Justices, ex parte McCarthy.