Judge orders compensation for Zika baby

A HIGH COURT judge has ordered the Minister of Health and his permanent secretary to immediately take steps to provide urgent, appropriate and specialised healthcare for a baby born with microcephaly in 2017.

Last week, Justice Joan Charles ruled in favour of the boy’s mother who challenged the Health Ministry’s failure to provide suitable and specialised care for her son.

In addition to providing urgent care for the boy, the minister and the PS were also ordered to arrange for financial assistance for the child’s care on an ongoing basis as well as implement proper protocols to assist the mother and the child in the management of his disabilities caused by microcephaly within three months.

In making those orders, Charles held that the failure of the Attorney General, which was named as a defendant in the claim, to provide urgent and specialised healthcare to the boy was in breach of his constitutional right to life.

The judge has awarded compensation for damages and aggravated to the boy and his mother for the constitutional breach as well as the breach of statutory duty of the minister and the PS plus interest from February 3, 2017, when the child was born, to the present, which will be assessed by a Master of the High Court.

The mother challenged the ministry’s failure to provide her with financial assistance despite promises that she would get a grant through the Social Development Ministry for children diagnosed with microcephaly due to the Zika virus.

She also said the ministry has failed to implement proper protocols to help mothers who gave birth to babies born with microcephaly.

In her ruling, Charles held there was no evidence by Chief Medical Officer Dr Roshan Parasram that despite the non-publication of guidelines for infants born with microcephaly due to the Zika virus, operational aspects of the policy were implemented.

She said any such rollout would only be in the State’s possession and it was its responsibility to disclose them.

“Their failure to do so led me to conclude that such evidence was not unavailable.”

She also said that the child’s mother satisfied her that the minister and the PS breached their statutory duty to the child by failing to implement a policy for his care and that the State did not dispel that perception by failing to provide evidence.

“I also hold that the defendants breached their duty of full and frank disclosure that is owed by all public authorities, such as the first and second defendants, in public law cases by failing to disclose any and all evidence in their possession relative to the implementation of the Guidelines or the National Policy for the treatment of babies infected with Zika.”

In addition to ruling against the State, the judge also pointed out that “no explanation” had been given for the failure to publish or implement the national guidelines for several years after Zika had been declared a public health emergency, and “after pregnant women had been infected with the virus and hundreds of children had been born with microcephaly.”

In 2017, there were four confirmed births of babies with microcephaly. The ministry said then two of the mothers tested positive for the Zika virus, the cause of the microcephaly, during the course of their pregnancies.

The mother of the child had previously been granted leave to challenge the ministry’s refusal to provide information under the Freedom of Information Act (FOIA) on the national policy on the Zika virus and pregnancy, particularly the guidelines set and the management of affected foetuses and neonatal information for health care providers.

While the mother succeeded in her initial claim for disclosure, the ministry told her the policy was in the draft stage and had not been implemented.

In her claim, the mother alleged that she and other parents with children suffering from microcephaly had a legitimate expectation that they would receive specialised treatment and counselling through the public health care system.

Her lawyers relied on a series of public statements made by Health Minister Terrence Deyalsingh during the Zika outbreak in 2016.

She said, on October 31, 2016, Deyalsingh held a press conference during which he declared the outbreak a public health emergency and said his ministry had enlisted the help of microcephaly experts from Brazil, Canada and England. The lawsuit also says Deyalsingh promised the Ministry of Social Development would provide grants to families who did not have the financial resources to provide optimum care for such children.

The mother said her child has not been seen by any foreign doctors. In November 2018, she was invited to have her baby participate in a three-month-long programme funded by a Zika sub-award grant from the US Agency for International Development.

The lawsuit also says the Social Development Ministry told her there was no special grant or financial assistance for children with microcephaly, and after she applied for public assistance, she received two payments of $1,150 in July 2018 and one payment in August. She had not received any payments since.

The mother was represented by attorneys Alvin Ramroop, Kingsley Walesby and Sarfraz Alsaran.

Representing the minister, the PS and the AG were Russell Martineau,SC, Sasha Sukhram and Nisa Simmons.