Remedy for refusal or cancellation of certificate

Section 4(5) states that: “Any person who is aggrieved by the refusal of the Council to issue a certificate to practise telemedicine or by the cancellation of a certificate to practise telemedicine may appeal to the Minister whose decision shall be final.” A section in a statute which seeks to create a finality of recourse is not always regarded as such by the courts. An application presumption in construing such “finality provisions” is the presumption against ouster of the jurisdiction of the courts. As Viscount Simonds in the case of Pyx Granite Ltd v. Ministry of Housing and Local Government [1960] AC 260 said :

“It is a principle not by any means to be whittled down that the subject’s recourse to Her Majesty’s courts for the determination of his rights is not to be excluded except by clear words. That is as McNair J called it in Francis v. Yiewsley and West Drayton Urban District Council a “fundamental rule” from which I would not for my part sanction any departure.

The remedy accorded by this section only applies to acts of the Council, namely the refusal to issue a certificate to practice telemedicine or the cancellation of such certification. This remedy does not apply to a person to whom the Director-General has permitted to practice telemedicine. The procedure for the appeal has not been introduced at the time of writing. Even with the finality of decision provision, the courts have still allowed an aggrieved party to seek the remedy of judicial review, and accordingly the decision of the Minister is not strictly final but is still subject to judicial review.