Lawsuit over dialysis centres heads to Privy Council

The content originally appeared on: Trinidad and Tobago Newsday

The San Fernando General Hospital. – File photo by Ayanna Kinsale

A LAWSUIT over the establishment of renal dialysis centres at the Eric Williams Medical Sciences Complex (EWMSC) and the San Fernando General Hospital (SFGH) is headed to the Privy Council.

At a virtual hearing on July 10, Justices of Appeal Peter Rajkumar, Maria Wilson and James Aboud were told the parties – the Prime Minister and the Cabinet and Comprehensive Nephrology Services Ltd (CNSL) and Biomedical Technologies Ltd (BTL) – had arrived at an agreed position on the preparation of a record of appeal and an application for final leave expected to be filed by September.

In January, Justices of Appeal Allan Mendonca, Prakash Moosai and James Aboud allowed an appeal by the State but varied the initial orders, made in 2021, of the High Court.

The Appeal Court gave the Cabinet 42 days to decide on proposed variations in the construction and operation of renal dialysis centres.

In doing so, they set aside certain orders of Justice Robin Mohammed, his findings, and declarations against the Prime Minister and members of Cabinet, the Minister of Health and the North Central Regional Health Authority, which sought to defend the State’s failure to facilitate the construction and operation of two full-service renal dialysis centres at the EWMSC and SFGH.

The Cabinet had appealed Mohammed’s order to the Government to decide in 42 days on the construction and operation of the centres, which had been on hold for over a decade.

Mohammed gave his 129-page judgment on July 13, 2021, in favour of Comprehensive Nephrology Services Ltd (CNSL), Biomedical Technologies Ltd (BTL) and the Caribbean Kidney Disease Society (CKDS). The judge found that renal dialysis centres would fill a significant gap in health care services, since (at that time) about 1,600 people required renal replacement therapy and the number was growing by about 150 a year.

However, in their ruling, the Appeal Court held that no court had the power to mandate a public authority to take into account what was raised in the lawsuit or to mandate the Cabinet to make decisions based on a court’s “mistaken or cursory identification of material consideration for a fair decision.”

“The most that this court can do is order the Cabinet to decide on the proposed variations within a reasonable time. In my view, 42 days is adequate,” Aboud, who wrote the decision, said.

At the Appeal Court, the Cabinet contended that the dispute was purely contractual and did not involve any public-law remedies.

The evidence in the High Court was that in October 2017 it was represented to CNSL and BTL that Cabinet’s final approval for the project was imminent, so the final contractual documents would be signed. It was on that basis that work proceeded and it was argued that the EWMSC centre was almost fully completed, with many millions already spent.

The CNSL and BTL subsequently challenged the Cabinet’s continued refusal to approve the completion of the centres, notwithstanding that all the contract documents had been approved and the EWMSC centre was about 90 per cent completed.

In its response, the Cabinet said the service provider had not yet been agreed upon and that economic considerations had intervened since the main contract had been signed in 2010 and the overall costs of the project had to be reconsidered.

Mohammed accepted the evidence of the three entities and held that the Cabinet’s delay was unreasonable and that CKDS members had a legitimate expectation of a substantive benefit that the centres would be established and operated for patients to receive world-class renal services. He said that this legitimate expectation was unlawfully frustrated by the government and that CKDS members’ constitutional rights under section 4(a) were contravened.

The Appeal Court held that the Cabinet’s delay in deciding whether to approve the variations proposed “is unreasonable in light of the course of dealings between the parties.”

However, the judges said there could be no legitimate expectation that the centres would be built in the terms set out in unapproved variations proposed to Cabinet. The Appeal Court also ruled that section 4 of the Constitution could not be interpreted as providing the right to a particular standard of public health in the context of a lengthy contractual gridlock between contracting parties.

Therefore, the court said, the society’s members did not have a constitutional right to a particular standard of public health care.

The three entities are represented by Ramesh Lawrence Maharaj, SC, Ronnie Bissessar, SC, and Varin Gopaul-Gosine.

The PM, Cabinet, the Minister of Health and the NCRHA were represented by Senior Counsel Michael Quamina at July 10’s hearing.