AYESHA A. MALIK, J.---The instant petition filed by the Punjab Healthcare Commission challenges order dated 16.10.2015 issued by Respondent No,2, District and Sessions Judge, Toba Tek Singh whereby the sealing order against the clinic of Respondent No,1, Mushtaq Ahmad Chaudhary was set aside and it was held therein that the Punjab Healthcare Commission ("Commission") did not have any power under the Punjab Healthcare Commission Act, 2010 ("Health Act") to seal a healthcare establishment. In the first round the case was heard on 20.11.2015 and a judgment was rendered by a learned Single Judge of this Court holding therein that the action of sealing a healthcare establishment is without any backing of law, hence without lawful authority.
Accordingly the order passed by the District and Sessions Judge, Toba Tek Singh dated 16.10.2015 was upheld. This judgment was challenged before the august Supreme Court of Pakistan in C.A 213/2016 and C.M.A 816/2016, C.A. 214/2016 and C.M.A. 818/2016 and C.Ps 768, 997 and 998 of 2016 wherein with the consent of the parties the following order was passed on 14.2.2017: Both the Appeals are allowed and the cases are remanded to the learned High Court to be tagged and heard along with Writ Petition No,2427/2017, filed by the Respondents challenging the wires of the Punjab Health Care Commission Act, 2010. The learned High Court will hear the parties and decide the matter in accordance with law.
2. The instant petition was being heard along with two other petitions. Firstly W.P. No,31831/2015 filed by the Punjab Dental Practitioners Association wherein it is prayed that the Commission should not illegally harass the members of the Association and it seeks a declaration that all persons registered under the Unani Ayurvedic and Homoeopathic Practitioner Act, 1965 ("Unani Act") be authorized to practice as dental technicians and dental hygienists, if they possess the appropriate diploma by the Skill Development Council. The second petition being W.P. No,2427/2017 is also filed by the Punjab Dental Practitioners Association and Mushtaq Ahmad Chaudhary. In this petition, the vires of the Health Act have been challenged essentially on the ground that the Provincial Government is not competent to legislate on the subject of healthcare. The aforementioned three petitions are being heard as per the remand order, along with connected matters being W.Ps.
Nos,28593/15, 21753/15, 19597/15, 38582/15, 79690/17, 11158/16 and 30210/16 (Details given in Schedule "A"). Essentially all these petitions either challenge the vires of the Health Act or challenge the act of sealing healthcare establishments by the Commission. In some petitions a declaration is sought against the Respondents from stopping the Petitioners from practicing as Hakeem or Homoeopathic doctors or in terms of their registration under the Unani Act.
3. In terms of the above, there are two main issues before this Court; (i) vires of the Health Act and
(ii) whether the Commission has the power to seal healthcare establishments under the Health Act.
Vires of the law The arguments
4. Mr. Mohammad Ahmad Qayyum, Advocate for the Dental Association and Mushtaq Ahmed Chaudhary explained that the Petitioners are qualified and registered under the Unani Act. That they are carrying out their lawful business in the field of traditional medicine, essentially as tibbs and homoeopaths, yet are being unlawfully harassed by the Commission. He argued that the Petitioners are regulated under the Unani Act, which essentially falls within the subject of medical profession. He argued that the Provincial Government is not competent to legislate on matters related to medical profession. He argued that in terms of Entry 11, Part 2 of the Federal Legislative List ("FLL"), the subject of legal, medical and other professions falls within the domain of the Federal Government, meaning thereby that only the Federal Government can legislate and regulate the medical profession. He further argued that the Health Act attempts to regulate the medical profession, hence it is ultra vires to the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution"). Further that it requires all medical practitioners to register with the Commission which is against the law as the Petitioners as with other medical practitioners are registered under a federal law, hence are not liable to register under a provincial law. The learned counsel contended that the Petitioners are also dental technicians and dental hygienists duly qualified from Skill Development Council and therefore competent to practice as dental hygienists or technicians. However, the Commission is creating hurdles in the way of the Petitioners from practicing as dental hygienists or technicians and as tibbs and homoeopaths. In this regard the Commission requires registration of the Petitioners under the Health Act irrespective of the registration under the Unani Act. Learned counsel stated that in the event that a practitioner is not registered with the Commission, it can at best impose a penalty, yet in these cases the Respondents have resorted to illegally sealing the establishments of the Petitioners. Learned counsel argued that the Respondents have initiated a crackdown on quackery and have included the clinics of the Petitioners who are not quacks, rather they are qualified dental technicians and dental hygienists as well as homoeopaths and tibb. Learned counsel further argued that the Respondents have failed to take into consideration that the Petitioners are qualified and duly registered with their respective Councils under the Unani Act, meaning thereby that they are not quacks. He argued that non-registration under the Health Act does not qualify as being a quack and that the Respondents have no authority to interfere in the lawful business of the Petitioners.
Consequently, the Petitioners seek a declaration that they be allowed to practice if they are registered under the Unani Act and have the appropriate diploma by the Skill Development Council, as additional qualification.
5. On behalf of the Commission, Khawaja Issam Bin Haris, Advocate argued that the Health Act was promulgated with the mandate to improve healthcare services and ban quackery. This subject, he argued falls squarely within the competence of the Provincial Government as healthcare services do not fall within the federal subject of medical profession. Learned counsel argued that the Petitioners' case is based on the false assumption that the medical profession is wide enough to cover and regulate healthcare services or healthcare establishments. He argued that the falsity of this assumption is apparent from the constitutional history on the subject of medical profession which has been a distinct subject from public health, sanitation, hospitals and dispensary which was always within the provincial domain. The former regulates the individual while the latter regulates the health care environment. Further that even with the widest of definitions the phrase medical profession cannot include healthcare services, the service provider or the establishment.
Learned counsel explained that the Health Act regulates healthcare services, healthcare service providers and healthcare establishments and therefore calls for registration and licensing by the same. In such a situation, it may be that a healthcare service provider or establishment is a qualified doctor or as in the cases before the Court a homoeopath or tibb. However, since the doctor, homeopath or tibb is running a clinic or hospital or a diagnostic centre, as the case may be, then such an establishment will fall under the definition of a healthcare establishment and healthcare service provider which requires registration and licensing under the Health Act. He argued that such an overlap if any with the Unani Act does not render the law unconstitutional.
Therefore it is his case that the Health Act is in accordance with the Constitution as the Provincial Government is competent to legislate on the subject matter. Reliance is placed on Inamur Rehman v. Federation of Pakistan and others (1992 SCMR 563), Messrs Elahi Cotton Mills Ltd. and others v.
Federation of Pakistan through Secretary MA) Finance, Islamabad and 6 others (PLD 1997 SC 582) and Syed Aizad Hussain and others v. Motor Registration Authority and others (PLD 2010 SC 983) in furtherance of the point that the Court shall interpret in favour of the constitutionality of a statute.
6. On behalf of the Provincial Government, Mr. Anwaar Hussain, Additional Advocate General argued that there is always a presumption in favour of the constitutionality of a statute unless the statute is not declared to be unconstitutional, which situation only arises if there is no way of reconciling or harmonizing the statute with the Constitution. In the instant cases, the subject of healthcare falls within the domain of the Provincial Government and requires the Provincial Government to legislate. Learned Law Officer further argued that historically the matter has always been with the Provincial Government and he agreed that the subject medical profession does not include healthcare services, service provider or establishment. He argued that if a medical professional or in this case a homoeopath or tibb is in the business of providing healthcare services then the services provided along with the establishment where the services are provided all fall within the domain of Provincial legislation. He explained that the intent of the Constitution is clear, such that the profession is regulated at the federal level, to maintain uniformity in education, training and standards throughout the country but the service provider and the establishment is regulated through Provincial legislation in order to ensure that the federal standards are maintained and public health is protected. He argued that in pith and substance the Health Act aims to improve performance and quality of healthcare and consequently prevents quackery. _Consequently all service providers and establishment have to be regulated at a Provincial level and cannot be regulated at a federal level.
7. On behalf of the Federal Government, Mr. Nasar Ahmad, Deputy Attorney General argued that the primary function of the Health Act is to improve the quality of healthcare services, clinical governance and to ban quackery in the Punjab. The Commission is empowered to take all necessary steps to fulfill the mandate of the law. He argued that a bare reading of the Health Act shows that the objective of the law is to regulate healthcare services and not the profession. He further argued that Federal legislature regulates the profession, meaning thereby that it regulates the practitioner or the education and not hospitals, clinics, dispensaries, allied staff, essentially the entire ambit of the healthcare environment. He further argued that the requirement of registration under the Health Act is not violative of the Constitution as the Federal Government seeks registration of medical professionals whereas the Commission seeks registration and licensing of the healthcare service provider and the healthcare establishment. Hence there is no overlap or conflict. He also argued that the healthcare is a broader subject whereas the medical profession is a more concise subject and does not include healthcare.
The law
8. The law under challenge is the Health Act. In terms of the preamble of the Health Act, the mandate of the law is to improve the quality of healthcare services and to ban quackery in all its forms and manifestation and to provide for ancillary matters. Section 4 of the Health Act provides for the functions and powers of the Commission, which includes the function to improve the quality of healthcare services and clinical governance and to ban quackery. Subsection (2) of Section 4 of the Health Act provides that the Commission has all the powers it requires in furtherance of this function. Section 2 (xv) defines healthcare establishment to mean a hospital, diagnostic centre, medical clinics, nursing home, maternity home, dental clinic, homeopathy clinic, tibb clinic, acupuncture, physiotherapy clinic or any other premises or conveyance. Section 2 (xvi) defines healthcare services to mean services provided for diagnosis, treatment or care of persons suffering from any physical or mental disease, injury or disability including procedures that are similar to forms of medical, dental or surgical care but are not provided in connection with a medical condition and includes any other service notified by the Government. Section 2 (xvii) provides for healthcare service provider to mean an owner, manager or incharge of a healthcare establishment and includes a person registered by the Pakistan Medical and Dental Council ("PMDC"), Council for Tibb, Council for Homeopathy or Nursing Council. Section 13 of the Health Act calls for registration of the healthcare service provider and Section 14 calls for licensing of a healthcare establishment. Section 19 of the Health Act provides that a healthcare service provider can be guilty of medical negligence if it does not have the required human resource and equipment, which it professes to have or if its employees do not have reasonable competency or skill that they possess. Section 20 of the Health Act requires the Commission to set standards for healthcare services and under Chapter-V, the Commission can inspect any healthcare establishment as per the procedure laid down.
9. In terms of the provision of the Health Act and its preamble, the Health Act regulates healthcare which essentially is the provision of services related to treatment, diagnosis and care including procedures, processes involved in the diagnosis, treatment and care. Consequently, the Health Act regulates the healthcare service provider being the person who is responsible for the provision of the services and the healthcare establishment being the space within which such services are provided such as a hospital, diagnostic centre, medical clinic, nursing home, maternity home, dental clinic, homeopathy clinic, tibb clinic and so on. Therefore the question that arises is what is healthcare and clinical governance and whether healthcare falls within the subject of medical profession.
Opinion 10.The Health Act regulates the healthcare environment which includes regulating the service provider, the establishment and the services. The Commission is mandated to ensure that all those in the business of providing healthcare are following the prescribed standards and are working towards improving the health of the people. Section 4 of the Health Act provides that the Commission shall improve the quality of healthcare and clinical governance. Neither healthcare nor clinical governance are defined under the Health Act as they are evolving concepts which cover the entire spectrum of the healthcare environment. Healthcare in its simplest of understanding is the maintenance or improvement of health through diagnosis, treatment, testing and will include all procedures and manner of care undertaken for the treatment or care of persons suffering from any physical, mental or emotional injury or disability. Clinical governance is the creation of a system to ensure that optimum quality of healthcare is given to everyone. The term was used for the first time by the World Health Organization ("WHO") in 1983 to encapsulate the provision of high quality healthcare on four important dimensions; professional performance, risk allocation, risk management and patient satisfaction. Over time this concept evolved to mean a system which is responsible, accountable and provides qualitative services and establishments, providing the highest standards of care to people. It essentially puts the principles of good governance in healthcare so as to ensure that all those involved in healthcare, the service provider, the establishment and those providing services are efficient, effective, responsive and accountable. Consequently the Commission addresses complaints, undertakes inspections and investigations to check poor performance, negligence and compromise in standard. Hence the primary function of the Commission under the Health Act is to govern the healthcare environment to maintain quality, safety and ensure that optimum level of care is experienced by the people.
11.In this context healthcare services cover a broad spectrum, involving the process and procedures, the medicine and staff involved in diagnosis, treatment and care. It is therefore not limited to just the practitioner, but instead covers the entire establishment which includes the staff, the equipment, the establishments and all the services provided there. It also takes into its fold persons who own, manage or run the establishment where the services are provided. This is necessary to ensure that persons who are in the business of healthcare take full responsibility of their involvement in the provision of healthcare. Therefore healthcare covers a broad spectrum of services and people, all of whom have a role to play in delivering quality healthcare. This includes amongst others administrators, technicians, nurses, pharmacists, therapist, assistances Lab technicians, sonographers, radiologists, dental technician, dental hygienists. A wide range of regulatory bodies and system will therefore regulate the healthcare environment, at all levels, federal, provincial and even local. Essentially the regulatory framework is geared to protecting public well being and health. Therefore, the argument that healthcare regulations are limited to the federal legislature is totally misconceived.
12.When seen in the context of the constitutional history of Pakistan, medical profession and public health, sanitation, hospitals and dispensaries have been two separate and distinct legislative subjects. Under the 1956 Constitution the subject of medical profession was included in Entry 1 of the Concurrent Legislative List ("CLL") and public health, sanitation, hospitals and dispensaries was Entry 26 of the Provincial Legislative List ("PLL"). Under the 1962 Constitution, neither the subject of medical profession nor public health figured in the Third Schedule to the Constitution which provided for matters falling in the executive domain of the Federation and enumerated the powers of the Federal legislature. Therefore, the subject of medical profession and public health fell within the domain of Provincial legislature under the 1962 Constitution. Under the interim Constitution of 1972 medical profession was again included in the CLL thereby empowering the Federal as well as 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. So far as the 1973 Constitution, 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, sanitation, hospitals and dispensary is not included in the FLL it means that this subject falls within the domain of Provincial government. Therefore, in terms of constitutional history, medical profession and public health, sanitation, hospitals and dispensary are two different and distinct subjects. Furthermore, it shows that the 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.
13. When seen in the context of its meaning there is sound logic in the fact that the subject of legal and medical profession is a federal subject. The subject regulates educational qualifications and requires uniformity of standards in training and qualification for the purposes of education and for the purposes of entry into the profession. In this regard, the Punjab Medical and Dental Council Ordinance, 1962 ("1962 Ordinance") regulates the minimum standards of higher educational qualification in medicine and dentistry. The law as amended from time to time essentially recognizes medical institutions as well as medical and dental qualifications. It recognizes hospitals or institutions for house jobs internship or foundation courses. It recognizes all medical and dental qualifications whether obtained in Pakistan or outside of Pakistan. It calls for the registration and licensing of medical and dental practitioners and all matters related to the establishment and running of medical and dental institutions including its 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 under the 1962 Ordinance. Various different regulations have been issued under the 1962 Ordinance including the Regulations titled Pakistan Registration of Medical and Dental Practitioners Regulations, 2008 ("Regulations"). In terms of these Regulations, compilation, maintenance and publication of registers which contain the registration of medical and dental practitioners are maintained as well as processes for removal of names from the registers. It provides for the procedure of filing a complaint against a medical or dental practitioner and provides for the procedure to be followed in such complaints. The 1962 Ordinance therefore, governs the medical and dental profession meaning thereby that it governs the individual who is qualified to practice as a doctor or dentist in Pakistan. It also regulates the institution from which the professional degree for qualifying as a doctor or dentist is obtained. The 1962 Ordinance does not regulate any of the healthcare services or establishments which will be used by the medical or dental practitioners during the process of providing medical or dental services. Hence the 1962 Ordinance clearly does not regulate clinics, dispensaries and diagnostic centres or testing procedures or any other related area which forms part of the ambit of healthcare services as defined under the Health Act.
14. The practice of Unani, Ayurvedic and Homoeopathic system of medicine are essentially traditional or alternate medicine which are popular within the country and play a significant role in providing healthcare to a large part of the population. Each system of medicine has its own unique characteristics and basis on which it provides cure and promotes good health. The argument of the Petitioners is that they are governed by the Unani Act which essentially means that their services along with their qualifications are regulated under the said Act. In order to appreciate this argument, it is necessary to examine the objective and mandate of the Unani Act. In terms of its preamble, it is an Act to regulate the qualifications and to provide for the registration of practitioners of Unani, Ayurvedic and Homoeopathic system of medicine. The Unani Act provides for a National Council for Tibb and National Council for Homoeopathy. The function of the Council as per Section 14 is to consider applications for recognition made by the institutions imparting or desiring to impart instruction in the system of medicine with which the Council is concerned. The Council also maintains adequate standards of education in recognized institutions and call for the registration of duly qualified persons. Teaching institutions and examinations are regulated under Chapter-II of the Unani Act and the registration of practitioners is provided for under Chapter-III. In terms of Section 24, every person who passes the qualified examination in the Unani, Ayurvedic or Homoeopathic system of medicine from a recognized institution must be registered in the respective register. Essentially there is a separate register for each system of medicine being Unani, Ayurvedic or Homoeopathic, hence practitioners of each system of medicine are required to be registered accordingly. Section 33 of the Unani Act provides for the privileges of a registered practitioner which entitles them to hold any appointment as physician or medical officer in any Unani, Ayurvedic, Homoeopathic dispensary, hospital, infirmary or as the case may be. It also allows them to vote for the election of members of the Council and to recover fees from the courts.
In terms of this Section, such practitioners cannot use, sale or stock any drugs or medicine except for those which are stipulated by the Council for the purposes of Unani, Ayurvedic or Homoeopathic system of medicine or pharmacopoeia as approved by the Federal Government. In terms of Section 37 of the Unani Act, no person other than a person registered or listed as a practitioner shall practice or hold himself out to be practicing Unani, Ayurvedic and Homoeopathic system of medicine. The said Section also clearly prohibits Homeopaths from practicing surgery. Therefore the mandate of the Unani Act is to regulate and maintain quality in the field of education and practitioners of Unani, Ayurvedic and Homoeopathic system of medicine, similar to the manner in which the 1962 Ordinance regulates medical and dental practitioners. It regulates individual practitioners through registration under the Unani Act so as to ensure that their qualifications are from recognized institutions and that they are duly qualified to practice in their given field. The Unani Act does not regulate healthcare services or establishments where these traditional system of medicine are practised. Nor does it hold the service provider responsible in any manner. It is important to note that healthcare is not limited to the work of the practitioner. It is the entire environment within which diagnosis treatment and care are provided. The Unani Act governs the licensing and registration of individuals who practice in the field of Unani, Ayurvedic and Homoeopathic system of medicine but does not regulate healthcare services, service providers or establishments. It is important to note that the profession along with healthcare environment both need to be regulated because a person who requires any kind of healthcare will be subjected to the practitioner along with others such as the support staff, technicians, procedures, equipment, hospitals and clinics. The term medical profession does not cover the entire healthcare environment. It only regulates the profession. The federal laws being the PMDC Ordinance and the Unani Act provide for the system of licensing and registration of individuals and is totally different from the licensing and registration called for under the Health Act. Sections 13 and 14 of the Health Act calls for registration of the service provider and licensing of the healthcare establishments. This is separate and distinct from the registration called for of the practitioners under Section 24 of the Unani Act. Therefore the Unani Act does not regulate healthcare services, service provider or healthcare establishments, rather it regulates the individual practitioner.
15. In this regard, even Section 19 of the Health Act which provides for medical negligence, confines its application to the healthcare service provider and not the practitioner. However, if in a given case, the healthcare provider or his employee did not exercise reasonable competence or skill which they claim to have, they can be made liable for medical negligence. There may be situation where the service provider and practitioner are the same individual as a doctor or dentist or homoeopath or tibb is running the clinic or diagnostic centre or hospital, however in such a situation each law will operate within its given sphere and the registration under one law will not mean that registration under the other law is not required. Hence the practitioner can be made liable under the federal law as well as under the provincial law not only in the capacity of practitioner but also for being a healthcare service provider or establishment. It is important to note that a practitioner is registered and licensed to practice in his or her individual capacity and registration or licensing which regulates the profession will not include regulating all healthcare services as it includes those services that are not provided by the practitioner himself. The general scheme of healthcare law and clinical governance requires efficiency, responsibility and accountability at every level where healthcare is provided. Hence the practitioner, the services, the establishment and the service provider are all regulated to ensure that healthcare works at its optimum for the benefit of the people.
16. To conclude it is clear that the Health Act does not regulate the medical profession as the provision of healthcare services, establishment and service providers are to be regulated by the Commission. These subjects do not fall under the subject of medical profession rather falls within the ambit of public health or healthcare which requires the sector to be regulated. Standardized and accountable. In any regulatory regime registration and licensing is fundamental for the authority to fulfill its objective and mandate. In these cases the Commission is required to create system of clinical governance and healthcare so that it can effectively monitor the work of all services, service provider and establishment in healthcare. This is distinct and separate from registering the profession of the practitioner, therefore the Health Act is not ultra vires the Constitution and the mandate of the Health Act falls squarely within the provincial domain.
Sealing Power 17.When the instant petition along with connected petitions were filed pursuant to the anti- quackery drive, the question of whether or not the Commission has the power to seal healthcare establishments arose. At the time it was decided in terms of the judgment delivered by the learned Single Judge that the Commission did not have the power to seal healthcare establishments as there were no rules or regulations on the basis of which the act of sealing derived legal sanctity.
The Commission exercised this power on the basis of the Standing Orders of the Commission for banning quackery in all its forms and manifestations for dealing with quacks which were duly approved by the Board of the Commission. However, the Court held that the Standing Orders were administrative directions of the Commission which are not enforceable against an individual or third party. Further that they deal with internal governance and at best regulate the internal working of the Commission. The Court concluded that there was no subordinate or delegated legislation as authorized by the parent legislation which empowers the Commission to exercise the power of sealing. Hence it was declared that the Commission did not have the power to seal a healthcare establishment. After the judgment was passed, the Commission framed regulations being the Punjab Healthcare Commission Regulations for Banning Quackery in all its Forms and Manifestations for Dealing with Quacks, 2016 which were duly published in the official gazette on 26.10.2016 and thereafter amended in the official gazette on 9.3.2017 ("Regulations"). Accordingly the Commission now acts under the Regulations which provide for the mode and manner in which the power of sealing is to be exercised.
18.The Petitioners have questioned the authority of the Commission to seal clinics and to take action against quacks on two grounds. The first ground for challenge is that the power of sealing is not provided for in the parent statute being the Health Act, hence the Commission can at best levy a fine but does not have the power to seal any healthcare establishment. The second ground is that the Commission could not have taken any action against the Petitioners since they are not quacks.
19.Learned counsel for the Commission argued that the mandate of the Health Act is to ban quackery in all forms and manifestations and in terms of Section 2(xxix) of the Health Act, a quack is a person who pretends to provide healthcare services without the required registration of the PMDC, Council for Tibb, Council for Homoeopathy and Nursing Council. These are the relevant federal authorities which register and license a practitioner in the respective field. Without this registration and licensing a person cannot practice in that field and if he or she does then they fall under the definition of a quack. In terms of the functions and powers of the Commission as provided under Section 4 of the Health Act, the Commission has the power to take all necessary steps to ban quackery. The Respondents counsel argued that the power of sealing is inherent in the statutory requirement to take necessary step as sealing is a necessary step in the prevention and eradication of quacks and quackery. Notwithstanding the same, the Commission has framed the Regulations which clearly provide for the power of visit, seizure and sealing. It also provides for the power to deal with complaints and prescribes for the steps that may be taken thereafter. Learned counsel for the Respondents explained to the Court that in each case pending before the Court the individuals were served with notices and were given ample opportunity to appear before the Commission to provide their registration and licenses to operate as healthcare service providers and to run healthcare establishments. However, they failed to do so, hence necessary action was taken by the Commission after following due process which included visits to the clinics before sealing the clinics of some of the Petitioners for want of registration and licenses.
20.Learned counsel for the Respondents also brought the attention of the Court to the orders passed by the august Supreme Court of Pakistan in Human Rights Case No,19921-P/2018 and Civil Misc. Applications Nos,1140-L, 1142-L, 1265-L, 1512-L and 4389/2018, where the august Supreme Court of Pakistan vide order dated 3.6.2018 has directed the Commission to ensure that all healthcare service providers and healthcare establishments are registered in terms of the requirement of the Health Act and that no person can operate an establishment or act as a service provider without registration and licensing under the Health Act. Learned counsel stated that in terms of the case pending before the august Supreme Court of Pakistan, homoeopathy, tibb, rehabilitation centre, diagnostic centres, dispensaries, all have been directed to register with the Commission.
Furthermore in terms of Suo Motu Case No,1 of 2010 and H.R.C. No,27813-Petitioner of 2017, the august Supreme Court of Pakistan vide order dated 14.4.2018 directed the Commission to take immediate steps to ban all such businesses including sealing of premises where quackery is being practised. Consequently the Commission has been actively pursuing the directions of the august Supreme Court of Pakistan and has taken necessary action in the event of non-compliance of the requirements of registration and licensing.
21.Notwithstanding the 'directions of the august Supreme Court of Pakistan, since the question of the authority of the Commission to seal clinics is before this Court consequent to the remand order dated 14.2.2017 by the august Supreme Court of Pakistan, the cases before this Court require consideration on the question of whether or not the Commission has the power to seal healthcare establishment.
Opinion 22.As already stated the mandate of the Health Act is to ban quacks and quackery. It goes without saying that any person who is not registered or licensed under the federal law is not entitled to practice or hold themselves out to be practitioners as they are not recognized or authorized under the relevant law to practice in that profession. Therefore any person holding himself or herself out to be a practitioner, who is not duly licensed and registered under the relevant law is a quack and has to be stopped from practising. The Commission has also as part of its anti-quackery drive, initiated action against healthcare service providers and healthcare establishments which are not registered or licensed ,under the Health Act. It is their contention that without registration and licensing the Commission is unable to enforce its standards and will not be able to investigate and inspect the service providers and establishments. It also means that people are practicing in the health sector without any regulatory influence and are not answerable to any quality checks. This puts the public at risk as they can be treated by establishment which are not answerable in the quality of services they provide. Hence the requirement of registration and licensing of the service providers and establishments is mandatory under the Health Act and any person providing healthcare services or running healthcare establishment, without registration or licensing can be deemed to be indulging in quackery as they are not in compliance with the Health Act and are avoiding making themselves liable to the standards and the Code of Conduct issued by the Commission. This is a manifestation of quackery as the service provider or establishment is not authorized to provide healthcare. In this regard the preamble of the Health Act mandates that the Commission shall improve the quality of healthcare services and ban quackery in all its forms and manifestations. Therefore the meaning of all forms and manifestations will include persons providing healthcare services or running a healthcare establishment without being duly registered or licensed. Such a person is also a pretender who is providing services without permission from the required authority. Such persons may, not necessarily fall within the definition of a quack as per Section 2(xxix) of the Health Act, but the power to seal that establishment or service provider is exercised to ensure compliance of the law.
23. The Petitioners have argued that the only power that the Commission has is to impose a fine and that sealing is not authorized under the Health Act. The primary objective of the Commission while regulating healthcare and clinical governance is public safety and public health. Any matter which puts the public health at risk or which compromises the health and care of a person, must be protected through preventive action. This Court has already held that the precautionary principle is applicable to the Punjab Food Authority while regulating food safety laws in the case cited as Lung Fung Chinese Restaurant through Atia Ahmed and 2 others v. Punjab Food Authority through Secretary and 6 others (PLD 2017 Lahore 545) as the precautionary principle enables public authorities to legitimately impose precautionary measures in response to situations that may lead to imminent harm and danger. In the same way the concept of precaution and prevention lies at the heart of public health practice, Dealing in public health means identifying and avoiding risks to the life and health of a person as well as g ensure that protected measures are taken to prevent any harm to persons who will require healthcare. The precautionary principle addresses uncertain risks and enables action to take place before any harm is caused, so as to prevent irreversible harm to the health of a person. The precautionary principle therefore enables an authority to take preventive measures to prevent the damage and the irreparable harm that can be caused. The WHO has published several reports on this issue starting from 2003 when the report of "Dealing with uncertainty: How the precautionary principle can help protecting the future of our children". In continuation thereof the WHO has successively published reports on the use of the precautionary principle as a means to promote protection to public health. The power of seizing and sealing is one of the preventive measures that is recognized as being essential to prevent continuous harm and has been given priority and preference so as to allow an authority to act immediately. It is seen that the precautionary principle and the preventive powers exercised thereunder essentially enable the authority to shift its response from re-action to precaution. It requires taking preventive action in the face of uncertainty and shifting the burden of proof to the proponents of the activity. It requires the system to ensure that its decisions are safe and efficient with public safety and health as its primary concern. By allowing the wrong to continue not only is public health at risk but the safety of persons who are being treated by pretenders is totally compromised. Therefore necessary steps as per Section 4 of the Health Act includes the inherent power of sealing as a preventive measure. The Regulations issued under Section 40(1) of the Health Act in 2016 prescribe the procedure to be adopted when the Commission is to seal a healthcare establishment. Hence the power of sealing exercised by the Commission is in furtherance of the mandate of the Health At and the powers given to it under the law. In this regard the power exercised prior to the framing of the Regulations falls within the inherent power to seal healthcare establishment to prevent any further risk or harm to persons under treatment or care by a healthcare establishment or healthcare service provider. Hence no illegality is made out against the act of sealing.
On the merits of the cases against sealing clinics
24. With respect to the merits of the individual cases before the Court, so far as due process is concerned, the record shows that due process in each case was duly followed. Notices were issued to the Petitioners calling for their registration or license under the Health Act. Since they did not produce either license or registration, their clinics were sealed. As per the arguments made and the record produced, sufficient time and opportunity was granted to the Petitioners to appear before the Commission to show their licences or registration, however they failed to do so. It is noted that in all these cases the Petitioners who essentially practice homoeopathy or tibb are also dental hygienists and dental technicians who believe that they do not require any kind of registration or licensing under the Health Act. It is their contention that since they are licensed and registered under the Unani Act, no further license or registration is required to run the clinic or to do the work of dental hygienists and dental technicians. In this regard, it has already been stated while discussing the vires of the Health Act that public health is regulated at different levels which will mean regulating the individual as well as regulating the services, the service provider as well as the healthcare establishment. Since the requirement of registration and licensing under the Health Act is mandatory, its compliance is necessary and any person who fails to comply with the law will face the consequences as described under the Health Act.
25.The Petitioners have also raised issues with respect to their qualifications and ability to practice as dental practitioners. Writ Petition No,79690/17 is filed by Zameer Ali Shah who states that he is a homoeopath as well as tibb practicing at Gojra for the last two decades; that he obtained a diploma as dental hygienists from Skill Development Council and therefore provides the services of a dental hygienists at his clinic. Initially his clinic was sealed, however after the orders of the Additional District Judge, the clinic was de-sealed. His grievance is that since he is registered under the Unani Act, the Respondents are illegally harassing him and stopping him from providing services of dentistry and surgery. Learned counsel for the stated Petitioner relied upon the diploma issued by the Skill Development Council and the registration under the Unani Act to argue the point that the Petitioner is qualified to practice dentistry. He further argued that the sealing power exercised by the Respondents was totally illegal; that the sealing report issued on 16.8.2017 shows that the Petitioner was not carrying out any invasive procedure and that it falls within the permitted functions of a homoeopath and tibb. He further argued that the Petitioner is allowed to use dental equipment even under the tibb and homoeopathic procedure, hence as such no illegality is made out against the Petitioners.
26.Writ Petition No,28593/2015 is filed by Naghmi Ashraf who claims to be homoeopath duly registered under the Unani Act and challenges the sealing of her clinic. Learned counsel in this case stated that in terms of the letter issued by Hakeem Nazeer Ahmed Asad who is Assistant Director (Homeo and Unani), homeopaths and Tibb are allowed to use instruments for diagnosis such as thermometer, blood pressure apparatuses and stethoscope in their clinics, hence on account of usage of the same the premises should not be sealed.
27.Writ Petition No,2427/2017 is filed by the Punjab Dental Practitioners Association as well as Mushtaq Ahmad who is a homoeopath and tibb and has a diploma from Skill Development Council as a dental hygienists and dental technician. His clinic was sealed on 4.9.2015 which was ultimately de-sealed on 16.10.2015 by the District and Sessions Judge, Toba Tek Singh. In this case also the Respondents stated that due process was followed, several notices were issued, however, the Petitioner Mushtaq Ahmad did not respond, hence the healthcare establishment was sealed.
Learned counsel for the Respondents stated that the Petitioner was running an establishment under the name of "Teeth Hospital" and during the visit to the establishment it was noticed that he was practicing dentistry; that he was unable to produce any registration under the 1962 Ordinance nor a license under the Health Act.
28.Writ Petition Nos,19597/2015, 38582/2015 and 21753/15 are filed by some homoeopaths and tibbs. In Writ Petition Nos,19597/2015, 38582/2015, the Petitioners have only challenged the vires of the Health Act. They hold diplomas from the Skill Development Council and they seek a direction that the Respondents should not interfere in the lawful business. Writ Petition No,31831/2015 is filed by the Punjab Dental Practitioners Association wherein it is prayed the Commission should not illegally harass the members of the Associa ien It also seeks a declaration that all persons registered under the Unani Act be authorized to practice as dental technicians and dental hygienists, if they possess the appropriate diploma by the Skill Development Council.
29.The case of the aforementioned Petitioners is that they are qualified and permitted to act as dental hygienists and dental technician and that this falls within the scope of their practice as registered and licensed under the Unani Act. Chaudhary Muhammad Umar, Advocate for the Commission during the course of arguments highlighted the nature and issues with reference to the diploma issued by the Skill.} Development Council. He argued that while the Petitioners have placed reliance on the diploma issued by the Skill Development Council, the Respondents have taken strong exception to the same. He explained that the Skill Development Council is not authorized under the National. Training Ordinance, 1980 as amended by the National Training _ (Amendment) Ordinance, 2002 ("Training Ordinance") to provide training in paramedical courses or courses for allied health professionals which includes dental hygienists and dental technician.
He further submitted that a dental hygienists and dental technician falls within the definition of allied health professionals and such persons are not --- authorized to practice independently without the supervision of a qualified dentist. Learned counsel further argued that the Punjab Medical Faculty is the examining body which conducts various examinations of paramedics and allied health professionals including dental hygienists and dental technician. On the basis of the certificates issued by the Punjab Medical Faculty, it is clearly provided that the holder of such certificate is not permitted to practice independently or to open a private clinic. They can only work under the supervision of qualified dentists. This is not disputed by the Petitioners, yet they argued that their respective Councils under the Unani Act permit them to use dental equipment and as part of traditional medicine working on the gums and teeth falls within their prescribed areas of practice.
30. The Unani Act provides for the constitution and function of a Council for Homoeopathy and a Council for Tibb. The function of the Councils are prescribed in Section 14 of the Unani Act as follows:
14. Functions of the Council.- The following shall be the functions of the Council, namely:-
(a) To consider applications for recognition under this Act made by institutions imparting or desiring to impart instruction in the system of medicine with which the Council is concerned;
(b) To secure the maintenance of an adequate standard of education in recognized institutions;
(c) to make arrangements for the registration of duly qualified persons in accordanc with the provisions of this Act,
(cc) to appoint committees or sub-committees, each having due representation of all the Provinces, for a specific period, to perform any specified function concerned with the functions of the Council;
(d) to provide for research in the system of medicine with which the Council is concerned; and
(e) to do such other acts and things as it may be empowered or required to do by this Act or the rules.
Whilst the Councils are regulating the practice of the practitioners, the Councils cannot authorize or recognize any training in scientific medical practice as it tantamounts to encroachment in the jurisdiction of the authorities regulating the scientific medical practice. In these cases the issue is specifically related to the practice of dental hygienists or dental technicians. The individual practitioners and the Dental Associations before the Court want to practice as dental hygienists and dental technicians on the basis of their diplomas from Skill Development Council. This permission or recognition cannot be granted by the Council as it falls under the scope of the Training Ordinance and the Punjab Medical Faculty who are duly authorized to train dental hygienists or technicians. The Councils are bound by the directives prescribed by the Punjab Medical Faulty and cannot prescribe anything to the contrary. So if a homoeopath or tibb, as the case may be, want to practice as dental hygienists and dental technician they will have to follow the directives issued under the Training Ordinance and by the Punjab Medical Faculty. They will have to be trained by the recognized institution and are bound by the restrictions prescribed by the competent authority, in this case being the Punjab Medical Faculty. Consequently the Petitioners cannot practice as dental hygienists or dental technician based on their diplomas issued by the Skill Development Council because these programs are not recognized programs nor is the Skill Development Council permitted to train allied health professionals. In this regard, it is necessary to note that only authorized programs and trainers can offer such professional training and if additional training is taken then all regulatory requirements attached to the professional training must be followed.
31.As is apparent from reading the prescribed function, the Council regulates education standards, qualifications and the institutions which provide training in homcopathy and tibb.
Section 18 of the Unani Act provides for the maintenance of standard of efficiency of recognized institutions, authorizing the Councils to inspect the institutions and to provide necessary information. Section 21 of the Unani Act allows the Councils to regulate admission to the recognized institutions and Section 24 calls for registration of practitioners. So essentially the Unani Act regulates professional education, the institutions and the practitioner. In doing so they form opinions on the practice of homoeopathic and tibb system of medicine by practitioners registered under the Unani Act. The Council considers matters related to the practice and issues directives accordingly. In these cases, the Petitioners are all specifically reliant on their Skill Development Council diplomas as dental hygienists and dental technicians and on the basis thereof want to provide these services in their clinics. The risk in these cases are that the Petitioners being trained and licensed under the Unani Act, are seeking to use scientific or modern methods of healthcare without any regulatory compliance. This cannot be permitted as it puts public health at risk and compromises public safety. The field of dental hygienists and technicians is regulated under the Bye-laws of the Punjab Medical Faculty as these fields fall under the definition of Allied Health Professionals and are registered accordingly. The Council therefore is not competent to permit or recognize Allied Health Professionals practice nor can they allow practitioners registration under the Unani Act to indulge in such practices.
32. Therefore in view of what has been discussed, W.Ps. Nos,79690/17, 2427/17, 31831/15, 19597/15, 38582/15, 28593/15, 11158/16 and 21753/15 are dismissed and W.P. No,32150/2015 is allowed and the impugned order dated 16.10.2015 is set aside.
33.Writ Petition No,30210/2016 is filed by seven Petitioners who are not registered under the Unani Act. The Petitioners have passed the examination of professional education two years Diploma course in Dental Hygienist from Skill Development Council and on the basis of which they are allowed to practice dentistry. In this petition, the Petitioners seek a direction that the Respondents should not interfere in the lawful business of the Petitioners and should not harass or humiliate them.
34.At the very outset, it is noted that these Petitioners are not registered under the Unani Act. The only question is that they have diplomas from Skill Development Council as dental hygienist. So far as these Petitioners are concerned they clearly fall under the definition of quack under the Health Act and any action taken by the Respondents with respect to their establishment is on the basis of the fact that they are not registered under the Unani Act and are not qualified to practice dentistry.
Hence this petition is dismissed.
35.WP No,28517/2016 is filed by Mian Abdul Majeed who seeks a direction to Respondent No,1 for the issuance of license. This relief as such cannot be granted by this Court in its constitutional jurisdiction. The Petitioner may apply for the required license and registration, if so advised which will be duly considered by the competent authority in accordance with law. Hence this petition is also dismissed.
SCHEDULE-A Details of Writ Petitions mentioned in judgment dated 6-7-2018 passed in W.P. No,32150/2015 Sr.
No,W.P. Nos, Parties Name 1. W.P.
No,32150/15Punjab Healthcare Commission v. Mushtaq Ahmad Chaudhary etc.
2. W.P.
No,79690/17Zameer Ali Shah v. Punjab Healthcare Commission etc.
3. W.P.No,2427/17Punjab Dental Practitioners Association etc. v.
Punjab Healthcare Commission etc.
4. W.P.
No,31831/15Punjab Dental Practitioners Association v.
Secretary Health. Government of Punjab Lahore etc.
5. W.P.
No,19597/15Tabib Ghulam Murtaza Mujahid v. Federation of Pakistan etc. 6.W.P.38582/15 Homeopathic Doctor Adil Hussain v. Federation of Pakistan etc. 7.W.P.
No,28593/15Naghma Ashraf v. Federation of Pakistan etc. 8.W.P.
No,11158/16Hakeem Mumtaz Hussain Qureshi v. Province of Punjab etc. 9.W.P.
No,30210/16Mohammad Nawaz etc. v.
Federation of Pakistan etc. 10.W.P.21753/15Muhammad Abdul Waheed Attari v. Secretary Health etc. 11.W.P.
No,28517/16Mian Abdul Majeed v. Chairman Helathcare Commission etc. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.