Introduction
1. The Petition dated 20th November 2023 is supported by the Petitioner’s affidavit in support of even date. The key contention in this Petition is that the Respondent and its Preliminary Inquiry Committee (PIC) in adjudicating the 1st Interested Party’s case against the Petitioner, failed to adhere to the provisions of the Medical Practitioners and Dentists Act and the Medical Practitioners and Dentists (Disciplinary Proceedings) (Procedure) Rules as a consequence violated the Petitioner’s right to fair administrative action under Article 47 of the Constitution.
2. The Petitioner thus seeks the following reliefs:
i. A declaration be issued that the conduct of the Respondent with respect to the complaint by the 1st Interested Party against the Petitioner failed the test of a fair administrative action that is required by Article 47 of the Constitution.
ii. An order of judicial review by way of Certiorari be issued to bring into this Court and quash the entire Ruling of the Preliminary Inquiry Committee of the Respondent dated August 2019.
iii. An order of judicial review by way of Certiorari be issued to bring into this Court and quash the entire resolution of the Respondent adopted at its 10th meeting adopting and approving the Ruling of the Preliminary Inquiry Committee of the Respondent dated August 2019.
iv. An order do issue to the Respondent to refund the Petitioner the sum of Ksh.150,000 together with interest thereon at commercial rates that the Petitioner paid to the Respondent in compliance with Order Number (iii) of its Ruling dated August 2019.
v. An order do issue compelling the Respondent to pay the Petitioner compensation for the injury that the Respondent's unlawful and unreasonable administrative action has caused to the Petitioner's professional reputation, interests, liberty and livelihood.
vi. Costs of the Petition be borne by the Respondents.
vii. Any other order(s) this Court shall deem fit.
Petitioner’s Case
3. The Petitioner stated that she is an ophthalmologist who specializes in cornea, refractive and cataract surgery. She was an employee of the 2nd Interested Party (Lion Sight First Eye Hospital) from 1st June, 2003 to January, 2018.
4. On 7th September, 2015; the 1st Interested Party visited the Lion Sight First Eye Hospital (2nd Interested Party) where the Petitioner was working at the time. After registration and the vision check was done by the nurse, the 1st Interested Party was referred to the Petitioner where he presented with a history of hypertension, significantly impaired vision in both eyes and had persistent watering from his right eye.
5. The Petitioner diagnosed the 1st Interested Party’s as suffering from bilateral cataracts (in both eyes) along with trichiasis in the right eye (a condition where the eyelashes abnormally turn inward causing irritation in the eyeball). Additionally, the 1st Interested Party had unaided vision of 6/36 in the right eye and 6/24 in the left eye.
6. The Petitioner cataract surgery in both eyes but before surgery; electrolysis to remove the inward turning lashes in the right eye. Electrolysis procedure was done successfully on 15th September 2015 in the right eye. The cataract surgery for the left eye was scheduled for 15th October 2015 but the 1st Interested Party was unavailable. It was pushed to 26th November, 2015 but again he did not show up. It was postponed to 3rd December, 2015.
7. The Petitioner avers that due to the 1st Interested Party’s persistent unavailability for almost two months, the vision continued to deteriorate in both eyes.
8. On 3rd December, 2015; the Petitioner deponed that she duly complied with the 2nd Interested Party’s pre-operative standard procedures and protocols and went ahead to perform a successful surgery of the 1st Interested Party’s left eye. She similarly carried out the surgery of the right eye on 10th December 2015. She however indicated that while performing the 2nd Surgery, she noted that the 1st Interested Party kept moving on the table and advised him not to move because it was raising the pressure in the eye.
9. The Petitioner scheduled subsequent reviews. On 14th December 2015, the vision in the right eye was 6/9 showing an improvement of 96% and this was also recorded on 28th December 2015 with intraocular pressure of 16mmHg (normal pressure ranges 10-20mmHg). She prescribed reading glasses and advised review on 18th January, 2016. On 11th January 2016, the Interested Party went back seeking one week sick off but on checking the right eye, the Petitioner says it was completely normal.
10. On 21st January 2016, six weeks post-surgery, she said on review of the Interested Party’s right eye, she discovered the vision had reduced to 6/24 while intraocular pressure was 14mmHg even though the 1st Interested Party was faring well. On 1st February 2016, the 1st Interested Party presented with a drop in vision in the right eye and upon examination, she found that he had Posterior Capsule Opacity (PCO) in the right eye, that is, whitening of the posterior capsule eye and some iris pigment on the implanted lens. She recommended the YAG laser procedure be undertaken which was successfully conducted on 19th February 2016. She explained that Posterior Capsule Opacity is a common occurrence after cataract surgery and can manifest from six to five years after surgery in 30% of the cases.
11. During the review on 4th March 2016, the 1st Interested Party presented with a sudden loss of vision in the right eye with the vision reduced to hand movement level (eye could only see the movement of the hand). The recommended a B-Scan (ultra sound) of the eye but did not notice detachment of the retina, the B-scan on 4.3.2016 revealing inflammation of vitreous (the jelly at the back of the eye) whose treatment required the services of Posterior Segment Surgeon. The Petitioner thus referred the 1st Interested Party to the 3rd Interested Party who is a Posterior Segment Surgeon.
12. The Petitioner stated that the 3rd Interested Party attended the 1st Interested party the same day, 4th March, 2016 and diagnosed his right eye partial posterior vitreous detachment (PVD) with total retinal detachment with choroidal detachment which would require multiple surgeries in view of the proliferative vitreo-retinopathy (PVR) changes (meaning that the retina was detached, the jelly at the back of the eye was detached partially, and the same jelly was inflamed) and advised right eye vitrectomy and blood tests at the earliest.
13. That although the 3rd Interested Party had diagnosed total retinal detachment, his intraoperative notes (notes taken during surgery) stated that the 1st Interested Party’s right eye retina was on, meaning it was attached and there was total choroidal effusion (meaning the choroid layer, which is behind the retina was infiltrated with fluid) along with proliferative vitreo-retinopathy (inflamed jelly).
14. The Petitioner deponed that a retinal tear occurring on 4th March, 2016, three months after cataract surgery, could not possibly have been related to, or occasioned by cataract surgery, given that the retinal tear occurred beyond the healing period for cataract surgery, which is six weeks.
15. That the 3rd Interested Party stated in his intraoperative notes that there was a retinal hole in the right eye which was lasered (sealed using endolaser) to prevent retinal detachment. The Petitioner explained that retinal holes can be caused by posterior vitreous detachment which is a natural process that happens with ageing of the vitreous as it dries up with age in some cases. That going by the 3rd Interested Party’s intraoperative notes, it was evident that at the operative table, there was no retinal detachment of the 1st Interested party’s right eye and therefore, the 3rd Interested Party’s preoperative diagnosis of retinal detachment changed at the time of surgery to retinal hole and proliferative vitreoretinopathy for if it had remained the same, the 3rd Interested Party would have performed retinal detachment surgery. The 3rd Interested Party intraoperative (theatre) notes however indicate that on 7th March, 2016; he performed PPV (parsplana-Vitectomy) + MP (membrane peeling) + PFCL (perfluro carbon fluid) + EL (endolaser) + FAX (fluid air exchange) + SOI (silicon oil insertion) under LA (local anaesthesia) meaning the 1st Interested Party was injected inside the right eye, and anaethestic medicine entered behind the retina and in the globe.
16. That the 3rd Interested Party’s theatre notes demonstrate that the intraocular lens implant that the petitioner had done was in intact, there was no retinal detachment as presumed by 2nd Interested Party after ultra sound, there was a small tear in retina which was laser sealed, and there was mild choroidal effusion.
17. The 3rd Interested Party thereafter performed the vitrectomy surgery on 7th March 2016 whose aim was to remove inflamed vitreous (removal of the jelly at the back of the eye because it was inflamed). That the 3rd Interested Party saw the 1st interested Party on 8th March, 2016; in which he noted the right eye conjunctiva suture was on and the PCIOL (lens implanted during surgery was sitting well) and retina was on and that there were no problems with the cornea. That the 3rd Interested Party reviewed 1st Interested Party on 12th March and noted that the right eye had cornea perforation and wondered whether it was caused by peripheral corneal degeneration (that is, the cornea which is the transparent layer of the eye had become thin and given way with protrusion of the iris).
18. The 3rd Interested Party referred the 1st Interested Party back to the Petitioner the same day to manage corneal perforation which upon diagnosis, the Petitioner confirmed 3rd Interested Party’s diagnosis of inferior cornea perforation with iris prolapse on the right eye.
19. The Petitioner explained that corneal degeneration has a variety of causes including trichiasis (constant rubbing of the eyelashes on cornea, steroid treatment on a thin cornea, ageing related degeneration of cornea, herpes, growth of conjunctiva on the cornea or marginal degenerative diseases such as peripheral ulcerative disease or trauma. The Petitioner recommended blood tests to establish the cause of peripheral cornea degeneration on the 1st Interested Party’s right eye in view of the many possible causes but he declined. She contended that the corneal perforation with prolapse occurring on 12th March, 2016 (three months after retinal tear surgery) could not plausibly have been related to or occasioned by, the cataract surgery performed on 10th December, 2015.
20. She on 15th March, 2016 performed the conjunctival flap surgery to stop the protrusion of the iris and contents of the right eye from coming out. She maintained that both she and the 3rd Interested Party followed the standard procedures. The 1st Interested Party was reviewed on 16th March 2016 and finally on 4th April 2016 by both the Petitioner and 3rd Interested Party.
21. In the last review, the 3rd Interested Party observed that the 1st Interested Party’s right eye was filled with oil and inferior sub-retinal fluid prompting him to recommend that he returns to the hospital so that a further detailed examination can be conducted. Thereafter, the 1st Interested Party proceeded with various reviews with the 3rd Interested Party.
22. The Petitioner depones that to her surprise, the 1st Interested Party on 18th July 2017 lodged a complaint against her and the 2nd Interested Party before the Respondent. The 1st Interested Party claimed that the Petitioner had damaged his right eye causing him severe and permanent visual impairment owing to her failure to follow the 2nd Interested Party’s standard preoperative and postoperative assessment.
23. In reaction to the complaint, the Respondent on 19th July 2017 directed both parties to respond to the charges and submit the relevant documents to the Preliminary Inquiry Committee (PIC) to carry out its investigations. The matter was filed under PIC Case No. 28 of 2017 pursuant to the Medical Practitioners and Dentists (Disciplinary Proceedings) (Procedure) Rules.
24. The Petitioner states that the PIC its hearing of that matter on 15th February 2019 where three witnesses testified.
25. These witnesses were: herself, the 1st Interested Party and Peter Ndegwa who is from the 2nd Interested Party’s Finance Department.
26. The PIC delivered its Ruling in August 2019 which was subsequently presented to the Respondent’s Full Board at its 120th meeting. The Committee found as follows:
i. The Petitioner failed to recognize and appreciate the signs of retinal detachment which is a well-known and serious complication following cataract surgery.
ii. There was delay in detecting the complication of retinal detachment.
iii. The Petitioner ought to have considered the various causes of reduced vision after cataract surgery and carried out necessary investigations to rule out likely complications.
iv. Due to retinal detachment, the 1st Interested Party became irreversibly blind in the right eye.
v. The failure of the 2nd interested party to give the patient Intravitreal Avastin injection after cataract surgery aggravated the damage to the 1st Interested Party’s right eye.
27. The PIC’s findings and recommendations were adopted and approved by the Respondent which ordered that:
i. The Petitioner herein be and is hereby admonished for failing to timely detect a known complication of cataract surgery.
ii. The Petitioner be and is hereby directed to begin mediation with the First Interested Party in order to obtain compensation, and to report the progress to the Medical Practitioners and Dentists Council Chair within sixty (60) days of the date of the ruling.
iii. The Petitioner be directed to pay the Medical Practitioners and Dentists Council Kenya Shillings One Hundred and Fifty Thousand (Kshs. 150,000.00/-) within fourteen (14) days of the ruling date as part of the Committee's sitting expenses.
iv. The Lions Sight First Eye Hospital is hereby reprimanded for neglecting to provide the Avastin Injection to the First Interested party because of a pending bill, regardless of the circumstances at the time.
28. The Petitioner states that the 1st Interested Party subsequently instituted a civil suit against her in Civil Case No. E181 of 2021 that is premised on the PIC’s said Ruling.
29. The Petitioner depones that although she complied with the Respondent’s order to pay the Ksh.150,000/-, she was dissatisfied with the PIC’s Ruling and a sought a review of the same by the Respondent’s Chairman in a letter dated 29th May 2020. He avers that the Respondent’s Chief Executive Officer responded in a letter dated 6th July 2020 informing that her application would be responded to within 14 days. She avers that this response never came.
30. This prompted her to write another letter dated 9th August 2021, and also highlighted the key areas of review being: she was at the time of the surgery an employee of the 2nd Interested Party thus the fees to the Board ought to have been borne by the 2nd Interested Party; that there was no independent retina opinion made during the hearing of this case taking into consideration the patient’s state of Hypertension ; that no independent anterior segment surgeon‘s opinion was taken during this case as regards negligence or timely intervention and no independent cornea opinion was taken as regards to his corneal perforation.
31. The Petitioner avers that the Respondent’s Legal Services Manager in a letter dated 13th August, 2021 (JT 47) wrote informing her that her application for review would be tabled before the Committee in September 2021 and would be advised on the way forward after deliberations. The Petitioner pointed out that no action was taken in the succeeding two years prompting her to write on 6th March 2023. In reply, the Respondent’s Chairman stated that the Council did not have a sitting Board thus the delay.
32. Having regard to the foregoing, the Petitioner contends that the Respondent has violated her right under Article 47 of Constitution going by the manner in which its PIC conducted its proceedings and arrived at its final determination. The Petitioner’s case against the Respondent is thus premised on the following grounds:
a) inordinate delay in dealing with her application for review.
b) that the PIC contravened Rule 4(2) of the Medical Practitioners and Dentists (Disciplinary Proceedings) (Procedure) Rules, 1979 as it did not refer the complaint against her to the Professional Conduct Committee (PCC).
c) the PIC presented its findings and proposed final orders to the Full Board without first referring the same to the PCC, hence PIC acted in excess of its jurisdiction contrary to express provisions of Rule 4 (2) of the Medical Practitioners and Dentists (Disciplinary Proceedings) (Procedure) Rules, 1979, Section 7 (2) (a) (ii) of the Fair Administrative Action Act, contrary to Article 47 of the Constitution.
d) The Respondent acted unlawfully in adopting and approving the findings and the proposed final orders of the PIC at its 120th Meeting contrary to the express provisions of Rule 4 (2) of the Medical Practitioners and Dentists (Disciplinary Proceedings) (Procedure) Rules, 1979 and Section 7 (2) (a) (i) of the Fair Administrative Action Act, resulting in the Petitioner being subjected to unlawful administrative action, contrary to Article 47 of the Constitution.
e) That the PIC issued a ruling without recording whether its decision was unanimous or taken by majority of the members present contrary to the express provisions of Rule 10Y (2) of the Medical Practitioners and Dentists (Disciplinary Proceedings) Rules 1979, resulting in the Petitioner being subjected to unlawful administrative action, contrary to Article 47 of the Constitution.
f) That PIC made orders in its undated ruling against the Petitioner in excess of its jurisdiction, contrary to Section 7 (2) (a) (ii) of the Fair Administrative Action Act and express provisions of Section 20 (1) & (2) of the Medical Practitioners and Dentists Act Revised Edition 2012, which expressly provide that the power to hold an inquiry in respect of complaint made against a medical practitioner or dentist resides in the Board, and not a committee of the Board. As the repository of the power to hold such inquiries, the Board cannot lawfully delegate to any other entity as the PIC or PCC hence the process the Petitioner was taken through violated right to lawful administrative action under Article 47 by holding a hearing in respect of 1st Interested Party’s complaint as PIC did not have the power to hold such hearing.
g) That the Minister in establishing the PIC and PCC in the Medical Practitioners and Dentists (Disciplinary Proceedings) (Procedure) Rules, 1979 and purporting to delegate to these two committees the power to hold hearings in respect of complaints against medical practitioners and dentists, the Minister acted ultra vires and beyond his powers, contrary to Section 7 (2) (a) (iii) of the Fair Administrative Action Act, resulting in the Petitioner being subjected to unlawful administrative action, contrary to Article 47 of the Constitution.
h) That the PIC failed to consider the file of the patient (the 1st Interested Party) which was submitted to it in its entirety by the 2nd Interested Party and the Petitioner, thus PIC failed to take into account a relevant consideration that a reasonable tribunal would have taken into account, contrary to Section 7 (2) (f) of the Fair Administrative Action Act, resulting in the Petitioner being subjected to unreasonable administrative action, contrary to Article 47 of the Constitution.
i) That PIC failed to call and consider the testimony of nurses who checked the patient at Lions Sight First Eye Hospital (2nd Interested Party) at all material times, thus PIC failed to take into account relevant consideration that a reasonable tribunal would have taken into account, contrary to Section 7 (2) (f) of the Fair Administrative Action Act, resulting in the Petitioner being subjected to unreasonable administrative action contrary to Article 47 of the Constitution.
j) That PIC failed to call and consider the testimony of the 3rd Interested Party despite having full knowledge that the 3rd Interested Party, a Posterior Segment Surgeon, also attended to the 1st Interested Party at all times, thus PIC acted unfairly contrary to Section 7 (2) (n) of the Fair Administrative Action Act, resulting in the Petitioner being subjected to unreasonable administrative action contrary to Article 47 of the Constitution
k) That PIC failed to call for and consider the Independent opinion of Posterior Segment Surgeon hence failed to take into account relevant considerations that a reasonable tribunal would have taken into account, contrary to Section 7 (2) (f) of the Fair Administrative Action Act, resulting in the Petitioner being subjected to unreasonable administrative action, contrary to Article 47 of the Constitution.
l) That PIC failed to call for and consider the independent opinion of cornea surgeon on the 1st Interested Party cornea perforation hence failed to take into account relevant considerations that a reasonable tribunal would have taken into account contrary to Section 7 (2) (f) of the Fair Administrative Action Act, resulting in the Petitioner being subjected to unreasonable administrative action contrary to Article 47 of the Constitution.
m) PIC failed to call and consider the opinion of an independent anterior segment surgeon on the timelines or otherwise of the interventions by the Petitioner while treating the 1st Interested Party, hence PIC failed to take into account relevant considerations that a reasonable tribunal would have taken into account contrary to section 7 (2) (f) of the Fair Administrative Action Act, resulting in the Petitioner being subjected to unreasonable administrative Action, contrary to Article 47.
n) that the finding by PIC that the 1st Interested Party had retinal detachment in the right eye without calling for and considering the testimony of the 3rd Interested Party and despite the testimony of the 1st Interested party and the Petitioner at the PIC hearing indicating the 3rd Interested Party also attended to the 1st Interested Party at all material times, PIC failed to take into account relevant considerations that a reasonable tribunal would have taken into account contrary to Section 7 (2) (f) of the Fair Administrative Action Act, resulting in the Petitioner being subjected to unreasonable action, contrary to Article 47 of the Constitution.
o) That the finding by PIC that the Petitioner “failed to recognize and appreciate the signs of retinal detachment” despite the evidence that cataract surgeries on the 1st Interested Party’s left eye and right eye were performed according to stipulated professional standards and were successful, and at all material times the 1st Interested Party’s retina of the right eye was attached, the PIC arrived at a finding that was unfair, unreasonable, without foundation and not rationally connected to the information before it contrary to Sections 7 (2) (i) (iii) and (n) of the Fair Administrative Action Act resulting in the Petitioner being subjected to unfair and unreasonable administrative action, contrary to Article 47 of the Constitution.
p) The finding by PIC that “ there was delay in detecting the complication of retinal detachment” despite the evidence demonstrating that at all material times the 1st interested Party retina of the right eye was attached, PIC arrived at a finding that was wrong, unfair, unreasonable, without foundation and was not rationally connected to the information before it, contrary to Sections 7 (2) (i) (iii) & (n) of the Fair Administrative Action Act, resulting in the Petitioner being subjected to unfair and unreasonable administrative action contrary to Article 47 of the Constitution.
q) The finding by PIC that the ‘Petitioner failed to recognize and appreciate the signs of retinal detachment’ despite evidence demonstrating that there was no delay in the diagnosis or management of the 1st Interested Party left eye, the PIC arrived at a decision that was unfair, unreasonable, without foundation and was not rationally connected to the information before it contrary to Sections 7 (2) (i) (iii) and (n) of the Fair Administrative Action Act, resulting in the Petitioner being subjected to unfair and unreasonable administrative action, contrary to Article 47 of the Constitution.
r) The finding by PIC that the Petitioner “ought to have considered other causes of reduced vision after cataract surgery and carried out necessary investigations to rule out likely complications” despite the evidence demonstrating that after cataract surgery the Petitioner diagnosed Posterior Capsule Opacity (PCO) in timely manner, performed YAG laser, referred him immediately after loss of vision in the right eye to retina surgeon, secured his cornea, and placed bandage contact lens in the right eye-PIC arrived at a finding that was unfair, unreasonable, without foundation and was not rationally connected to the information before it, contrary to Sections 7 (2) (i) (iii) and (n) of the Fair Administrative Action Act, resulting in the Petitioner being subjected to unfair and unreasonable administrative action, contrary to Article 47 of the Constitution.
s) The order by PIC that the Petitioner “be and is hereby admonished for failing to detect a known complication of cataract surgery” PIC arrived at a decision that was unfair, unreasonable, without foundation and was not rationally connected to the information before it, contrary to sections 7 (2) (i) (iii) and (n) of the Fair Administrative Action Act, resulting in the Petitioner being subjected to unfair and unreasonable administrative action, contrary to Article 47.
t) The order by PIC directing that the Petitioner pays ‘Medical Practitioners and Dentists Council the sum of Kshs. 150,000/- within a period of 14 months from the date of the [Ruling] as part of costs for Committee Sitting’ the PIC arrived at a decision that was unfair, unreasonable, without foundation and was not rationally connected to the information before it, contrary to Sections 7 (2) (i) (iii) and (n) of the Fair Administrative Action Act, resulting in the Petitioner being subjected to unfair and unreasonable administrative action, contrary to Article 47 of the Constitution.
33. The Petitioner complains that the PIC’s erroneous decision has tainted her professional reputation and livelihood besides the verdict has caused her mental pain and financial burden which necessitates compensation under Article 23(3) of the Constitution.
Respondent’s Case
34. The Respondent’s response and submissions are not in the Court file or Court Online Platform (CTS).
1st Interested Party’s Case
35. The 1st Interested Party filed his Replying Affidavit sworn on 18th November 2024.
36. Recapping the facts of this case, the 1st Interested Party claims that the Petitioner during the cataract surgery of his right eye, blatantly neglected to test his intra-ocular pressure before commencing the surgery which was a breach of the routine preoperative assessment.
37. In addition, he contends that when he requested the Petitioner to conduct an ultra sound of the right eye to assess the status of his retina, the Petitioner dismissed his request and went ahead to prescribe Predforte eye drops, Ciprofloxacin eye drops and Timolol eye drops for 3 days. He stated that despite consistently informing the Petitioner that his vision in the eye was deteriorating, she maintained that his lens was sitting in its normal place and that his vision would go back to normal.
38. That he complained of gradual diminishing vision and excruciating pain in the right eye but the Petitioner assured him his lens were sitting well and his vision would return to normal and proceeded to subject him to laser treatment to deceptively clean up the surface of the lens in his right eye.
39. That to his dismay, when he visited the 2nd Interested Party on 14th December, his vision was found to be worse than it was before the surgery.
40. He states that even the treatment notes by the Petitioner attached to her affidavit confirm that from 14th December, 2015 to 21st January, 2016; there was steady decline of his vision despite the fact that he was regularly visiting the Petitioner for further reviews and check ups considering he had a high risk of retinal detachment.
41. He avers that it due to negligent acts and omissions by the Petitioner despite him consistently complaining about his fading eyesight, he eventually lost the vision in the right eye hence the decision to lodge a complaint with the Respondent on 18th July, 2017 against both the Petitioner and the 2nd Interested Party.
42. The 1st Interested Party depones that on 15th February, 2019, himself, the Petitioner and a Mr. Peter Ndwiga appeared before the PIC to present their respective testimonies. He avers that in the end the PIC ruled in his favour and its recommendations adopted by the Respondent in its 120th meeting. He also clarified that in arriving at its decision about Petitioner’s negligence and the state of the 1st Interested Party’s retina, PIC considered the independent opinion of Dr. Kihaki, a surgeon at Eagle Eye Laser Centre.
43. It is asserted the Preliminary Inquiry Committee (PIC) is by virtue of Rule 4 (a) & 4 (3) of the Medical Practitioners and Dentists (Disciplinary Proceedings) (Procedure) Rules is authorized to inquire into complaints of professional disgraceful conduct of any medical practitioner of dentist.
44. He states that the Petitioner failed to adhere to the Respondent’s
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1. The Petition dated 20th November 2023 is supported by the Petitioner’s affidavit in support of even date. The key contention in this Petition is that the Respondent and its Preliminary Inquiry Committee (PIC) in adjudicating the 1st Interested Party’s case against the Petitioner, failed to adhere to the provisions of the Medical Practitioners and Dentists Act and the Medical Practitioners and Dentists (Disciplinary Proceedings) (Procedure) Rules as a consequence violated the Petitioner’s right to fair administrative action under Article 47 of the Constitution.
2. The Petitioner thus seeks the following reliefs:
i. A declaration be issued that the conduct of the Respondent with respect to the complaint by the 1st Interested Party against the Petitioner failed the test of a fair administrative action that is required by Article 47 of the Constitution.
ii. An order of judicial review by way of Certiorari be issued to bring into this Court and quash the entire Ruling of the Preliminary Inquiry Committee of the Respondent dated August 2019.
iii. An order of judicial review by way of Certiorari be issued to bring into this Court and quash the entire resolution of the Respondent adopted at its 10th meeting adopting and approving the Ruling of the Preliminary Inquiry Committee of the Respondent dated August 2019.
iv. An order do issue to the Respondent to refund the Petitioner the sum of Ksh.150,000 together with interest thereon at commercial rates that the Petitioner paid to the Respondent in compliance with Order Number (iii) of its Ruling dated August 2019.
v. An order do issue compelling the Respondent to pay the Petitioner compensation for the injury that the Respondent's unlawful and unreasonable administrative action has caused to the Petitioner's professional reputation, interests, liberty and livelihood.
vi. Costs of the Petition be borne by the Respondents.
vii. Any other order(s) this Court shall deem fit.
Petitioner’s Case
3. The Petitioner stated that she is an ophthalmologist who specializes in cornea, refractive and cataract surgery. She was an employee of the 2nd Interested Party (Lion Sight First Eye Hospital) from 1st June, 2003 to January, 2018.
4. On 7th September, 2015; the 1st Interested Party visited the Lion Sight First Eye Hospital (2nd Interested Party) where the Petitioner was working at the time. After registration and the vision check was done by the nurse, the 1st Interested Party was referred to the Petitioner where he presented with a history of hypertension, significantly impaired vision in both eyes and had persistent watering from his right eye.
5. The Petitioner diagnosed the 1st Interested Party’s as suffering from bilateral cataracts (in both eyes) along with trichiasis in the right eye (a condition where the eyelashes abnormally turn inward causing irritation in the eyeball). Additionally, the 1st Interested Party had unaided vision of 6/36 in the right eye and 6/24 in the left eye.
6. The Petitioner cataract surgery in both eyes but before surgery; electrolysis to remove the inward turning lashes in the right eye. Electrolysis procedure was done successfully on 15th September 2015 in the right eye. The cataract surgery for the left eye was scheduled for 15th October 2015 but the 1st Interested Party was unavailable. It was pushed to 26th November, 2015 but again he did not show up. It was postponed to 3rd December, 2015.
7. The Petitioner avers that due to the 1st Interested Party’s persistent unavailability for almost two months, the vision continued to deteriorate in both eyes.
8. On 3rd December, 2015; the Petitioner deponed that she duly complied with the 2nd Interested Party’s pre-operative standard procedures and protocols and went ahead to perform a successful surgery of the 1st Interested Party’s left eye. She similarly carried out the surgery of the right eye on 10th December 2015. She however indicated that while performing the 2nd Surgery, she noted that the 1st Interested Party kept moving on the table and advised him not to move because it was raising the pressure in the eye.
9. The Petitioner scheduled subsequent reviews. On 14th December 2015, the vision in the right eye was 6/9 showing an improvement of 96% and this was also recorded on 28th December 2015 with intraocular pressure of 16mmHg (normal pressure ranges 10-20mmHg). She prescribed reading glasses and advised review on 18th January, 2016. On 11th January 2016, the Interested Party went back seeking one week sick off but on checking the right eye, the Petitioner says it was completely normal.
10. On 21st January 2016, six weeks post-surgery, she said on review of the Interested Party’s right eye, she discovered the vision had reduced to 6/24 while intraocular pressure was 14mmHg even though the 1st Interested Party was faring well. On 1st February 2016, the 1st Interested Party presented with a drop in vision in the right eye and upon examination, she found that he had Posterior Capsule Opacity (PCO) in the right eye, that is, whitening of the posterior capsule eye and some iris pigment on the implanted lens. She recommended the YAG laser procedure be undertaken which was successfully conducted on 19th February 2016. She explained that Posterior Capsule Opacity is a common occurrence after cataract surgery and can manifest from six to five years after surgery in 30% of the cases.
11. During the review on 4th March 2016, the 1st Interested Party presented with a sudden loss of vision in the right eye with the vision reduced to hand movement level (eye could only see the movement of the hand). The recommended a B-Scan (ultra sound) of the eye but did not notice detachment of the retina, the B-scan on 4.3.2016 revealing inflammation of vitreous (the jelly at the back of the eye) whose treatment required the services of Posterior Segment Surgeon. The Petitioner thus referred the 1st Interested Party to the 3rd Interested Party who is a Posterior Segment Surgeon.
12. The Petitioner stated that the 3rd Interested Party attended the 1st Interested party the same day, 4th March, 2016 and diagnosed his right eye partial posterior vitreous detachment (PVD) with total retinal detachment with choroidal detachment which would require multiple surgeries in view of the proliferative vitreo-retinopathy (PVR) changes (meaning that the retina was detached, the jelly at the back of the eye was detached partially, and the same jelly was inflamed) and advised right eye vitrectomy and blood tests at the earliest.
13. That although the 3rd Interested Party had diagnosed total retinal detachment, his intraoperative notes (notes taken during surgery) stated that the 1st Interested Party’s right eye retina was on, meaning it was attached and there was total choroidal effusion (meaning the choroid layer, which is behind the retina was infiltrated with fluid) along with proliferative vitreo-retinopathy (inflamed jelly).
14. The Petitioner deponed that a retinal tear occurring on 4th March, 2016, three months after cataract surgery, could not possibly have been related to, or occasioned by cataract surgery, given that the retinal tear occurred beyond the healing period for cataract surgery, which is six weeks.
15. That the 3rd Interested Party stated in his intraoperative notes that there was a retinal hole in the right eye which was lasered (sealed using endolaser) to prevent retinal detachment. The Petitioner explained that retinal holes can be caused by posterior vitreous detachment which is a natural process that happens with ageing of the vitreous as it dries up with age in some cases. That going by the 3rd Interested Party’s intraoperative notes, it was evident that at the operative table, there was no retinal detachment of the 1st Interested party’s right eye and therefore, the 3rd Interested Party’s preoperative diagnosis of retinal detachment changed at the time of surgery to retinal hole and proliferative vitreoretinopathy for if it had remained the same, the 3rd Interested Party would have performed retinal detachment surgery. The 3rd Interested Party intraoperative (theatre) notes however indicate that on 7th March, 2016; he performed PPV (parsplana-Vitectomy) + MP (membrane peeling) + PFCL (perfluro carbon fluid) + EL (endolaser) + FAX (fluid air exchange) + SOI (silicon oil insertion) under LA (local anaesthesia) meaning the 1st Interested Party was injected inside the right eye, and anaethestic medicine entered behind the retina and in the globe.
16. That the 3rd Interested Party’s theatre notes demonstrate that the intraocular lens implant that the petitioner had done was in intact, there was no retinal detachment as presumed by 2nd Interested Party after ultra sound, there was a small tear in retina which was laser sealed, and there was mild choroidal effusion.
17. The 3rd Interested Party thereafter performed the vitrectomy surgery on 7th March 2016 whose aim was to remove inflamed vitreous (removal of the jelly at the back of the eye because it was inflamed). That the 3rd Interested Party saw the 1st interested Party on 8th March, 2016; in which he noted the right eye conjunctiva suture was on and the PCIOL (lens implanted during surgery was sitting well) and retina was on and that there were no problems with the cornea. That the 3rd Interested Party reviewed 1st Interested Party on 12th March and noted that the right eye had cornea perforation and wondered whether it was caused by peripheral corneal degeneration (that is, the cornea which is the transparent layer of the eye had become thin and given way with protrusion of the iris).
18. The 3rd Interested Party referred the 1st Interested Party back to the Petitioner the same day to manage corneal perforation which upon diagnosis, the Petitioner confirmed 3rd Interested Party’s diagnosis of inferior cornea perforation with iris prolapse on the right eye.
19. The Petitioner explained that corneal degeneration has a variety of causes including trichiasis (constant rubbing of the eyelashes on cornea, steroid treatment on a thin cornea, ageing related degeneration of cornea, herpes, growth of conjunctiva on the cornea or marginal degenerative diseases such as peripheral ulcerative disease or trauma. The Petitioner recommended blood tests to establish the cause of peripheral cornea degeneration on the 1st Interested Party’s right eye in view of the many possible causes but he declined. She contended that the corneal perforation with prolapse occurring on 12th March, 2016 (three months after retinal tear surgery) could not plausibly have been related to or occasioned by, the cataract surgery performed on 10th December, 2015.
20. She on 15th March, 2016 performed the conjunctival flap surgery to stop the protrusion of the iris and contents of the right eye from coming out. She maintained that both she and the 3rd Interested Party followed the standard procedures. The 1st Interested Party was reviewed on 16th March 2016 and finally on 4th April 2016 by both the Petitioner and 3rd Interested Party.
21. In the last review, the 3rd Interested Party observed that the 1st Interested Party’s right eye was filled with oil and inferior sub-retinal fluid prompting him to recommend that he returns to the hospital so that a further detailed examination can be conducted. Thereafter, the 1st Interested Party proceeded with various reviews with the 3rd Interested Party.
22. The Petitioner depones that to her surprise, the 1st Interested Party on 18th July 2017 lodged a complaint against her and the 2nd Interested Party before the Respondent. The 1st Interested Party claimed that the Petitioner had damaged his right eye causing him severe and permanent visual impairment owing to her failure to follow the 2nd Interested Party’s standard preoperative and postoperative assessment.
23. In reaction to the complaint, the Respondent on 19th July 2017 directed both parties to respond to the charges and submit the relevant documents to the Preliminary Inquiry Committee (PIC) to carry out its investigations. The matter was filed under PIC Case No. 28 of 2017 pursuant to the Medical Practitioners and Dentists (Disciplinary Proceedings) (Procedure) Rules.
24. The Petitioner states that the PIC its hearing of that matter on 15th February 2019 where three witnesses testified.
25. These witnesses were: herself, the 1st Interested Party and Peter Ndegwa who is from the 2nd Interested Party’s Finance Department.
26. The PIC delivered its Ruling in August 2019 which was subsequently presented to the Respondent’s Full Board at its 120th meeting. The Committee found as follows:
i. The Petitioner failed to recognize and appreciate the signs of retinal detachment which is a well-known and serious complication following cataract surgery.
ii. There was delay in detecting the complication of retinal detachment.
iii. The Petitioner ought to have considered the various causes of reduced vision after cataract surgery and carried out necessary investigations to rule out likely complications.
iv. Due to retinal detachment, the 1st Interested Party became irreversibly blind in the right eye.
v. The failure of the 2nd interested party to give the patient Intravitreal Avastin injection after cataract surgery aggravated the damage to the 1st Interested Party’s right eye.
27. The PIC’s findings and recommendations were adopted and approved by the Respondent which ordered that:
i. The Petitioner herein be and is hereby admonished for failing to timely detect a known complication of cataract surgery.
ii. The Petitioner be and is hereby directed to begin mediation with the First Interested Party in order to obtain compensation, and to report the progress to the Medical Practitioners and Dentists Council Chair within sixty (60) days of the date of the ruling.
iii. The Petitioner be directed to pay the Medical Practitioners and Dentists Council Kenya Shillings One Hundred and Fifty Thousand (Kshs. 150,000.00/-) within fourteen (14) days of the ruling date as part of the Committee's sitting expenses.
iv. The Lions Sight First Eye Hospital is hereby reprimanded for neglecting to provide the Avastin Injection to the First Interested party because of a pending bill, regardless of the circumstances at the time.
28. The Petitioner states that the 1st Interested Party subsequently instituted a civil suit against her in Civil Case No. E181 of 2021 that is premised on the PIC’s said Ruling.
29. The Petitioner depones that although she complied with the Respondent’s order to pay the Ksh.150,000/-, she was dissatisfied with the PIC’s Ruling and a sought a review of the same by the Respondent’s Chairman in a letter dated 29th May 2020. He avers that the Respondent’s Chief Executive Officer responded in a letter dated 6th July 2020 informing that her application would be responded to within 14 days. She avers that this response never came.
30. This prompted her to write another letter dated 9th August 2021, and also highlighted the key areas of review being: she was at the time of the surgery an employee of the 2nd Interested Party thus the fees to the Board ought to have been borne by the 2nd Interested Party; that there was no independent retina opinion made during the hearing of this case taking into consideration the patient’s state of Hypertension ; that no independent anterior segment surgeon‘s opinion was taken during this case as regards negligence or timely intervention and no independent cornea opinion was taken as regards to his corneal perforation.
31. The Petitioner avers that the Respondent’s Legal Services Manager in a letter dated 13th August, 2021 (JT 47) wrote informing her that her application for review would be tabled before the Committee in September 2021 and would be advised on the way forward after deliberations. The Petitioner pointed out that no action was taken in the succeeding two years prompting her to write on 6th March 2023. In reply, the Respondent’s Chairman stated that the Council did not have a sitting Board thus the delay.
32. Having regard to the foregoing, the Petitioner contends that the Respondent has violated her right under Article 47 of Constitution going by the manner in which its PIC conducted its proceedings and arrived at its final determination. The Petitioner’s case against the Respondent is thus premised on the following grounds:
a) inordinate delay in dealing with her application for review.
b) that the PIC contravened Rule 4(2) of the Medical Practitioners and Dentists (Disciplinary Proceedings) (Procedure) Rules, 1979 as it did not refer the complaint against her to the Professional Conduct Committee (PCC).
c) the PIC presented its findings and proposed final orders to the Full Board without first referring the same to the PCC, hence PIC acted in excess of its jurisdiction contrary to express provisions of Rule 4 (2) of the Medical Practitioners and Dentists (Disciplinary Proceedings) (Procedure) Rules, 1979, Section 7 (2) (a) (ii) of the Fair Administrative Action Act, contrary to Article 47 of the Constitution.
d) The Respondent acted unlawfully in adopting and approving the findings and the proposed final orders of the PIC at its 120th Meeting contrary to the express provisions of Rule 4 (2) of the Medical Practitioners and Dentists (Disciplinary Proceedings) (Procedure) Rules, 1979 and Section 7 (2) (a) (i) of the Fair Administrative Action Act, resulting in the Petitioner being subjected to unlawful administrative action, contrary to Article 47 of the Constitution.
e) That the PIC issued a ruling without recording whether its decision was unanimous or taken by majority of the members present contrary to the express provisions of Rule 10Y (2) of the Medical Practitioners and Dentists (Disciplinary Proceedings) Rules 1979, resulting in the Petitioner being subjected to unlawful administrative action, contrary to Article 47 of the Constitution.
f) That PIC made orders in its undated ruling against the Petitioner in excess of its jurisdiction, contrary to Section 7 (2) (a) (ii) of the Fair Administrative Action Act and express provisions of Section 20 (1) & (2) of the Medical Practitioners and Dentists Act Revised Edition 2012, which expressly provide that the power to hold an inquiry in respect of complaint made against a medical practitioner or dentist resides in the Board, and not a committee of the Board. As the repository of the power to hold such inquiries, the Board cannot lawfully delegate to any other entity as the PIC or PCC hence the process the Petitioner was taken through violated right to lawful administrative action under Article 47 by holding a hearing in respect of 1st Interested Party’s complaint as PIC did not have the power to hold such hearing.
g) That the Minister in establishing the PIC and PCC in the Medical Practitioners and Dentists (Disciplinary Proceedings) (Procedure) Rules, 1979 and purporting to delegate to these two committees the power to hold hearings in respect of complaints against medical practitioners and dentists, the Minister acted ultra vires and beyond his powers, contrary to Section 7 (2) (a) (iii) of the Fair Administrative Action Act, resulting in the Petitioner being subjected to unlawful administrative action, contrary to Article 47 of the Constitution.
h) That the PIC failed to consider the file of the patient (the 1st Interested Party) which was submitted to it in its entirety by the 2nd Interested Party and the Petitioner, thus PIC failed to take into account a relevant consideration that a reasonable tribunal would have taken into account, contrary to Section 7 (2) (f) of the Fair Administrative Action Act, resulting in the Petitioner being subjected to unreasonable administrative action, contrary to Article 47 of the Constitution.
i) That PIC failed to call and consider the testimony of nurses who checked the patient at Lions Sight First Eye Hospital (2nd Interested Party) at all material times, thus PIC failed to take into account relevant consideration that a reasonable tribunal would have taken into account, contrary to Section 7 (2) (f) of the Fair Administrative Action Act, resulting in the Petitioner being subjected to unreasonable administrative action contrary to Article 47 of the Constitution.
j) That PIC failed to call and consider the testimony of the 3rd Interested Party despite having full knowledge that the 3rd Interested Party, a Posterior Segment Surgeon, also attended to the 1st Interested Party at all times, thus PIC acted unfairly contrary to Section 7 (2) (n) of the Fair Administrative Action Act, resulting in the Petitioner being subjected to unreasonable administrative action contrary to Article 47 of the Constitution
k) That PIC failed to call for and consider the Independent opinion of Posterior Segment Surgeon hence failed to take into account relevant considerations that a reasonable tribunal would have taken into account, contrary to Section 7 (2) (f) of the Fair Administrative Action Act, resulting in the Petitioner being subjected to unreasonable administrative action, contrary to Article 47 of the Constitution.
l) That PIC failed to call for and consider the independent opinion of cornea surgeon on the 1st Interested Party cornea perforation hence failed to take into account relevant considerations that a reasonable tribunal would have taken into account contrary to Section 7 (2) (f) of the Fair Administrative Action Act, resulting in the Petitioner being subjected to unreasonable administrative action contrary to Article 47 of the Constitution.
m) PIC failed to call and consider the opinion of an independent anterior segment surgeon on the timelines or otherwise of the interventions by the Petitioner while treating the 1st Interested Party, hence PIC failed to take into account relevant considerations that a reasonable tribunal would have taken into account contrary to section 7 (2) (f) of the Fair Administrative Action Act, resulting in the Petitioner being subjected to unreasonable administrative Action, contrary to Article 47.
n) that the finding by PIC that the 1st Interested Party had retinal detachment in the right eye without calling for and considering the testimony of the 3rd Interested Party and despite the testimony of the 1st Interested party and the Petitioner at the PIC hearing indicating the 3rd Interested Party also attended to the 1st Interested Party at all material times, PIC failed to take into account relevant considerations that a reasonable tribunal would have taken into account contrary to Section 7 (2) (f) of the Fair Administrative Action Act, resulting in the Petitioner being subjected to unreasonable action, contrary to Article 47 of the Constitution.
o) That the finding by PIC that the Petitioner “failed to recognize and appreciate the signs of retinal detachment” despite the evidence that cataract surgeries on the 1st Interested Party’s left eye and right eye were performed according to stipulated professional standards and were successful, and at all material times the 1st Interested Party’s retina of the right eye was attached, the PIC arrived at a finding that was unfair, unreasonable, without foundation and not rationally connected to the information before it contrary to Sections 7 (2) (i) (iii) and (n) of the Fair Administrative Action Act resulting in the Petitioner being subjected to unfair and unreasonable administrative action, contrary to Article 47 of the Constitution.
p) The finding by PIC that “ there was delay in detecting the complication of retinal detachment” despite the evidence demonstrating that at all material times the 1st interested Party retina of the right eye was attached, PIC arrived at a finding that was wrong, unfair, unreasonable, without foundation and was not rationally connected to the information before it, contrary to Sections 7 (2) (i) (iii) & (n) of the Fair Administrative Action Act, resulting in the Petitioner being subjected to unfair and unreasonable administrative action contrary to Article 47 of the Constitution.
q) The finding by PIC that the ‘Petitioner failed to recognize and appreciate the signs of retinal detachment’ despite evidence demonstrating that there was no delay in the diagnosis or management of the 1st Interested Party left eye, the PIC arrived at a decision that was unfair, unreasonable, without foundation and was not rationally connected to the information before it contrary to Sections 7 (2) (i) (iii) and (n) of the Fair Administrative Action Act, resulting in the Petitioner being subjected to unfair and unreasonable administrative action, contrary to Article 47 of the Constitution.
r) The finding by PIC that the Petitioner “ought to have considered other causes of reduced vision after cataract surgery and carried out necessary investigations to rule out likely complications” despite the evidence demonstrating that after cataract surgery the Petitioner diagnosed Posterior Capsule Opacity (PCO) in timely manner, performed YAG laser, referred him immediately after loss of vision in the right eye to retina surgeon, secured his cornea, and placed bandage contact lens in the right eye-PIC arrived at a finding that was unfair, unreasonable, without foundation and was not rationally connected to the information before it, contrary to Sections 7 (2) (i) (iii) and (n) of the Fair Administrative Action Act, resulting in the Petitioner being subjected to unfair and unreasonable administrative action, contrary to Article 47 of the Constitution.
s) The order by PIC that the Petitioner “be and is hereby admonished for failing to detect a known complication of cataract surgery” PIC arrived at a decision that was unfair, unreasonable, without foundation and was not rationally connected to the information before it, contrary to sections 7 (2) (i) (iii) and (n) of the Fair Administrative Action Act, resulting in the Petitioner being subjected to unfair and unreasonable administrative action, contrary to Article 47.
t) The order by PIC directing that the Petitioner pays ‘Medical Practitioners and Dentists Council the sum of Kshs. 150,000/- within a period of 14 months from the date of the [Ruling] as part of costs for Committee Sitting’ the PIC arrived at a decision that was unfair, unreasonable, without foundation and was not rationally connected to the information before it, contrary to Sections 7 (2) (i) (iii) and (n) of the Fair Administrative Action Act, resulting in the Petitioner being subjected to unfair and unreasonable administrative action, contrary to Article 47 of the Constitution.
33. The Petitioner complains that the PIC’s erroneous decision has tainted her professional reputation and livelihood besides the verdict has caused her mental pain and financial burden which necessitates compensation under Article 23(3) of the Constitution.
Respondent’s Case
34. The Respondent’s response and submissions are not in the Court file or Court Online Platform (CTS).
1st Interested Party’s Case
35. The 1st Interested Party filed his Replying Affidavit sworn on 18th November 2024.
36. Recapping the facts of this case, the 1st Interested Party claims that the Petitioner during the cataract surgery of his right eye, blatantly neglected to test his intra-ocular pressure before commencing the surgery which was a breach of the routine preoperative assessment.
37. In addition, he contends that when he requested the Petitioner to conduct an ultra sound of the right eye to assess the status of his retina, the Petitioner dismissed his request and went ahead to prescribe Predforte eye drops, Ciprofloxacin eye drops and Timolol eye drops for 3 days. He stated that despite consistently informing the Petitioner that his vision in the eye was deteriorating, she maintained that his lens was sitting in its normal place and that his vision would go back to normal.
38. That he complained of gradual diminishing vision and excruciating pain in the right eye but the Petitioner assured him his lens were sitting well and his vision would return to normal and proceeded to subject him to laser treatment to deceptively clean up the surface of the lens in his right eye.
39. That to his dismay, when he visited the 2nd Interested Party on 14th December, his vision was found to be worse than it was before the surgery.
40. He states that even the treatment notes by the Petitioner attached to her affidavit confirm that from 14th December, 2015 to 21st January, 2016; there was steady decline of his vision despite the fact that he was regularly visiting the Petitioner for further reviews and check ups considering he had a high risk of retinal detachment.
41. He avers that it due to negligent acts and omissions by the Petitioner despite him consistently complaining about his fading eyesight, he eventually lost the vision in the right eye hence the decision to lodge a complaint with the Respondent on 18th July, 2017 against both the Petitioner and the 2nd Interested Party.
42. The 1st Interested Party depones that on 15th February, 2019, himself, the Petitioner and a Mr. Peter Ndwiga appeared before the PIC to present their respective testimonies. He avers that in the end the PIC ruled in his favour and its recommendations adopted by the Respondent in its 120th meeting. He also clarified that in arriving at its decision about Petitioner’s negligence and the state of the 1st Interested Party’s retina, PIC considered the independent opinion of Dr. Kihaki, a surgeon at Eagle Eye Laser Centre.
43. It is asserted the Preliminary Inquiry Committee (PIC) is by virtue of Rule 4 (a) & 4 (3) of the Medical Practitioners and Dentists (Disciplinary Proceedings) (Procedure) Rules is authorized to inquire into complaints of professional disgraceful conduct of any medical practitioner of dentist.
44. He states that the Petitioner failed to adhere to the Respondent’s
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