UAE Federal Decree No 4 of 2016 and Cabinet Resolution No 40 of 2019 – the key legislation relating to Medical Responsibility- modified the infrastructure of how claims arising from medical error and/or medical negligence are dealt with by UAE Health Regulators and, indeed, by onshore UAE Courts.
Medical Liability Committees (‘MLCs’) convened by local Health Regulators (e.g. Dubai Health Authority or Department of Health- Abu Dhabi) are tasked with the sole (and mandatory) jurisdiction to opine on issues of medical error, gross medical error, causation, and disability.
Appeals of disputed MLC decisions filed by Patients or Physicians/Hospitals are reviewed by a re-tasked Supreme Committee of Medical Liability (‘SCML’)- a body convened by the UAE Ministry of Health and Prevention- whose decisions are expressed in the key legislation to be final and not subject to challenge before any authority.
Similarly, Federal Decree No 5 of 2019 (amending earlier legislation) provided for appeal or grievances procedures before various complaint committees set up within Health Regulators enabling physicians to challenge regulatory decisions relating to:
1. Refusal(s) to grant physicians’ licence to practise application(s) (‘Licencing Decisions’); and
2. Disciplinary sanction(s) – including warnings, fines and temporary or permanent suspension of licences- imposed by Health Regulators (‘Disciplinary Decisions’).
In both instances, the decisions of the appellant committees are expressed to be ‘final’ although Federal Decree No 5 of 2019 does not go as far as stating that they are not subject to challenge before any authority- as it does in Decree No 4 of 2016.
The status quo as outlined above may be about to go through a seismic shift given the recent decision of the Union Supreme Court in Appeal No 696 of 2024 Administrative delivered 7 August 2024 (‘the Decision’).
In this remarkable judgment, which dealt specifically with the judicial challenge of an SCML decision, the apex Court ruled that pursuant to the UAE Constitution every person has a protected right to challenge a final ‘administrative’ decision (in this case the Ministry of Health and Prevention) before the local Courts. It also found that ‘shielding’ of any act or administrative decision from judicial review is impermissible. In the instant case, the SCML report finding of gross medical error was challenged via an annulment lawsuit and the lawsuit was dismissed at the Courts of First Instance and Appeal. The disputed SCML report was finally annulled by the Union Supreme Court who overturned the decision of the lower Courts.
The impact of the Decision is to give clear judicial authority to allow further challenges to disputed final MLC/SCML decisions before the Courts- which – in turn will impact upon the outcome of Disciplinary Decisions that more or less rely upon SCML and/or final MLC decisions/findings of ‘gross medical error’ as the basis/grounds to support sanction.
Although not of ‘binding’ judicial authority- there is no doctrine of binding judicial precedent in the UAE- the Decision is highly persuasive in respect of other similar cases. Clearly, the Decision may further extend to, inter alia, support challenges to disputed Licencing Decisions and disputed Disciplinary Decisions thereby providing a further round of due process to those physicians unfairly/unreasonably denied a licence or subject to an unfair/unreasonable sanction imposed upon them.
Given that some unfortunate physicians may face regulatory sanction of a fine of up to AED 1 million or temporary revocation or full revocation of licence (thereby depriving them the ability to earn a living) as well as facing potential liability for medical errors and/or gross medical errors in UAE Civil law for extensive compensation and/or substantial fines/imprisonment in UAE Criminal law- the Decision is expected to be widely- welcomed by physicians through-out the UAE.