Statutory Provisions and Administrative Standing Orders

Statutory Provisions and Administrative Standing Orders Case Laws Constitutional Law Delegated Legislation Healthcare Interpretation of Statutes Knowledge - Constitutional Law Lahore High Court Litigation & Arbitration Solutions - Constitutional Law Subordinate Legislation Mr. Justice Syed Mansoor Ali Shah in his judgment has decided the issue regarding statutory provisions and administrative standing orders in Writ Petition No. 32150 of 2015.

1. Brief facts of the case are that petitioner Commission initiated proceedings against respondent No.1 (a health service provider/health service establishment) and also sealed the establishment of the said respondent. The said action was challenged before District & Sessions Judge, Toba Tek Singh under Section 30 of the Punjab Healthcare Commission Act, 2010 (“Act”) who vide impugned order dated 16.10.2015 set aside the sealing of the premises on the ground that there was no provision under the Act to seal the premises of respondent No.1 and directed the Commission to decide the matter regarding notice dated 03.09.2015 issued to the said respondent.

2. Learned counsel for the petitioner Commission, inter alia, submits that Standing Orders issued by the Commission under section 9(1)(i) of the Act provide for sealing of the healthcare establishment, therefore, the impugned order passed by the learned District and Sessions Judge Toba Tek Singh, is without lawful authority. He further submits that respondent no.1 has failed to approach the Anti-Quackery Cell constituted under the Standing Orders as a consequence he could not have approached the learned District & Sessions Judge directly under section 30 of the Act.

3. Learned counsel for respondent No.1 argued that the Act does not authorize sealing of the premises of respondent No.1 and therefore the same cannot be sealed under the Standing Orders of the Commission. He adds that Standing Orders [under section 9(1)(i)] and Instructions or Directives [under section 4(2)(o) ] have no binding force on an individual or a third party and are non-binding instrument for the internal governance of the Commission. He submitted that Standing Orders or the Instructions and Directives cannot assume the same statutory status as that of subordinate legislation in the shape of Rules and Regulations under the Act.

4. Arguments of the opposing parties have been heard and the relevant law has been examined. In order to appreciate the contention raised in this petition, it is necessary to visit the legal architecture of the Act, the extent of the powers and functions of the Punjab Healthcare Commission (“Commission”) and the Board under the Act, the nature and scope of subordinate legislation under the Act and the difference between subordinate legislation and executive directions/orders issued by the Commission.

5. Careful review of the Act reveals that the prime purpose of establishing the Commission under the Act is to improve the quality of healthcare services and to ban quackery in Punjab in all its forms and manifestations.1 The Commission is established through a notification under the Act and is a body corporate with all its allied attributes. The functions and powers of the Commission under section 4 of the Act are focused towards improving the quality of healthcare services, clinical governance and to ban quackery. Clinical governance, under the Act, is a systematic approach to maintaining and improving quality of patient care.2 The functions and powers of the Commission, inter alia, include the power to: impose and collect penalties on violations, breach or non-compliance of the provisions of the rules, regulations, standing orders and instructions issued under this Act. or issue regulations, guidelines, instructions and directives to persons involved in the provision of Healthcare Services and to take necessary steps to ban quackery [section 4(2) (g), (o) & (q)]. Commission is to take into consideration the policy advice of the Technical Advisory Committee and also coordinate with the Government.3 The Commission may undertake investigation into allegations of maladministration, malpractice, or failure on the part of healthcare service provider or any employee of the healthcare service provider on a complaint of an aggrieved party or an aggrieved healthcare service provider or on a reference by the Government or the Provincial Assembly of Punjab or on the motion of the Supreme Court of Pakistan or the Lahore High Court, made during the course of any proceedings before it4. The Commission for the purposes of investigation enjoys the powers vested in a civil court under the Code of Civil Procedure, 1908 in respect of summoning and enforcing the attendance of any person and examining him on oath, compelling the production of documents, receiving evidence on affidavits and issuing Commission for the examination of witnesses.5 Procedure of investigation is provided under section 23 of the Act.

6. The general superintendence, direction and management of the affairs of the Commission and overall policy making in respect of its operation shall vest in the Board which may exercise all such powers and do all such acts deeds and things that may be exercised or done by the Commission under the Act. Functions and powers of the Board, for the purposes of this case, inter alia, include the powers to approve the standing orders of the Commission.6 The Board shall consist of nine Commissioners notified by the Government, who shall hold office for a term of three years.

Further information regarding statutory provisions and administrative standing orders can be solicited from AUJ LAWYERS. Feel free to contact us in case you need any clarification and/or require legal assistance regarding similar matters.