THE Health Professions Council of Zambia (HPCZ) has asked the Lusaka High Court to discharge the ex-parte order granting Dr Brian Sampa leave to commence judicial review against the council’s decision to suspend his practicing certificate.
HPCZ has argued that its action to suspend Dr Sampa’s practicing certificate was solely in public interest owing to the health emergency created by his illegal actions.
This is a matter in which Resident Doctors Association of Zambia president Dr Sampa dragged HPCZ to court over its decision to suspend his practicing certificate.
But according to an affidavit in opposition to affidavit verifying facts, HPCZ registrar and chief executive officer Bwembya Bwalya said the actions of Dr Sampa to direct resident doctors to proceed on a go-slow were illegal as they were contrary to the provisions of the health professions Act as read together with the industrial and labour relations Act which prohibits workers employed in the provision of essential services from taking [part in] industrial actions such as go-slows and strikes.
He explained that the general membership of the RDAZ consists of essential workers as defined by the industrial and labour relations Act.
Bwalya stated that following the illegal actions of Dr Sampa, HPCZ proceeded to issue him a notice of intention to suspend on May 28, 2021, which was served on him electronically because their frantic efforts to serve the applicant in person proved futile.
“That by directing members of the RDAZ to go on a go-slow, the actions of the applicant created a national emergency in the midst of the COVID-19 global pandemic,” he stated.
He added that Dr Sampa was not given a notice of suspension as the HPCZ electronically served the applicant with a notice of intention to suspend and a notice of suspension to which he did not respond.
Bwalya noted that at the time, the council was unable to trace Dr Sampa and could not physically serve him with both notices which clearly stated the grounds on which they were based and he was given 24 hours to show cause why his practicing certificate should not be suspended.
“Dr Sampa was duly suspended by the HPCZ and the actions of the respondent to suspend his practicing certificate were solely in public interest owing to the health emergency created by the illegal actions of the applicant. That the respondent properly discharged its mandate under the applicable statute and in public interest,” he stated.
Bwalya explained that according to the applicable statute, even assuming without conceding that the HPCZ fell into any error, Dr Sampa’s recourse does not fall within judicial review but rather an appeal to the minister of health and if unsuccessful a further appeal to the court.
He further stated that the court can only deal with appeals from the decisions of the HPCZ after the consideration of the same by the minister and not by way of public law remedy of judicial review.
Bwalya added that the ex-parte order granting the applicant leave to commence judicial review against the respondent should therefore be discharged as the public law remedy is not available in the matter.
In this matter, Dr Sampa is seeking a declaration that the purported decision of HPCZ to suspend his Practising Certificate is illegal, irrational, and procedurally improper.
He is further seeking, among other reliefs, a declaration that the purported decision of HPCZ in the absence of the Health Professions Council is illegal, irrational, and procedurally improper; and further an order of certiorari quashing the said decision.