By Latrishka Thomas
After hearing testimony from several witnesses last week, lawyers representing two alleged surgical imposters submitted a ‘no case’ submission to High Court Judge Ann-Marie Smith, but it was not upheld.
Dr Patrick Matthews, a chiropractor by profession, and his colleague, Arnold Joseph, an operating theatre practitioner, are accused of practicing as general medical practitioners and performing a surgical procedure without a licence and receiving monies as a result.
The alleged offence took place in Gunthropes on April 8, 2015 when the two men reportedly performed a circumcision on a then five-year-old boy in contravention of Section 12 (a) of the Medical Practitioners Act No. 3 of 2009 of the Laws of Antigua and Barbuda.
As a result, the boy, now 11 years-old, reportedly suffered a number of complications as a result of the alleged botched surgery.
The two men sat in the defense box last week and listened to several witnesses, including a number of medical practitioners, give sworn evidence in their Judge-only trial which was adjudicated by Justice Ann-Marie Smith.
Subsequently, Matthews’ lawyer, Dr David Dorsett made a submission upon which Joseph’s lawyer Michael Archibald also relied.
Yesterday, Justice Smith told the court that the submission did not succeed because “there is evidence that meets the prima facie threshold”.
She noted that the Vice-Chairperson of the Antigua and Barbuda Medical Council, Dr Leslie Walwyn, testified that Matthews was never registered to practice medicine in Antigua and Barbuda.
Furthermore, evidence stated that he pretended to be a doctor in the National Stroke Association (NSA) and told the child’s parents that a circumcision is a service offered by the NSA with a high success rate.
The child’s father also said that Matthews told him that he will perform the surgery and promised that his son would be good in a day or two.
Evidence also revealed that monies were paid to NSA, of which Matthews was a member, and was never refunded. She stated that the corporate veil can be lifted in this case to treat the rights and duties of the NSA as that of Matthew.
After the judge ruled on the submission, the two defendants were asked to chose one of three options: to give sworn evidence and be cross examined; to give unsworn evidence and not be questioned; or to remain silent. Both men chose not to say a word.
Subsequently, the Crown closed its case. Director of Public Prosecutions Anthony Armstrong reminded the court of important pieces of evidence.
Firstly, that the father of the minor testified to seeing Joseph use an instrument to cut his son’s genitals and that he was instructed by Matthews.
Thereafter, Matthews “prepared the young boy for this mutilation”, Armstrong remarked while referencing the fact that the father saw Matthews clamp the foreskin.
Armstrong argued that it was “manifestly clear” that the men acted individually and collectively by encouraging and assisting each other in committing the crime.
Their “presence was not incidental. It was purposeful and intentional,” the DPP added.
He further stated that Matthews, of Gunthropes, was merely a physiotherapist and Dr Walwyn stated that she knew him for quite some time and he was never a medical doctor.
Similarly, the prosecution indicated that Joseph of Cassada Gardens told the police that he was not a qualified surgical technician as he held himself out to be.
Yet, two doctors gave evidence stating that they were invited to observe the men execute the procedure and witnessed them in the act.
But according to Armstrong, Matthews told the police that it was those two doctors who did the surgery, “a concoction which was designed to remove him from any responsibility in this botched circumcision”.
Armstrong concluded by saying that the “evidence is overwhelming” and there is “no doubt as to the liability of Mr Joseph and Dr. Matthews with regard to this case.”
Archibald began his closing argument by questioning whether the Crown fulfilled its obligation to prove beyond a reasonable doubt that his client was “practicing medicine as general practitioner” as stated in the indictment.
“We have not heard of what type of treatment falls under the purview of a general practitioner,” he opined stating that the act under which they were charged does not speak to them acting as “surgeons or specialists.”
“Arnold Joseph did not hold himself as a doctor,” Archibald asserted.
He said that his client was a surgical technician responsible for handing tools. Furthermore, he reminded the court that the evidence does not refute the idea that Joseph was a theatre technician at the hospital since the late ‘80s.
He therefore told the Judge that “if you are uncertain, the matter against Arnold Joseph must be dismissed.”
Lastly, Dr Dorsett joined Archibald in dissecting the indictment, saying that “there is no evidence as to what is meant by practicing medicine.”
He argued that piercing the corporate veil should only occur in extreme circumstances such as evasion, and since the company did not evade any legal obligation, the principle cannot be applied.
Dr Dorsett concluded by saying that “there can be no conviction on Section 12(a) because the offense that is said to be created is vague” [and on Count 2 which refers to the recovering of fees] “the defendant is not the NSA who the evidence revealed the money was made out to”.
Justice Smith will deliver her verdict on July 23.