Falling through the cracks

THE FACTUAL basis on which the High Court last week determined the State had failed in its duty to cater to the needs of a baby born with Zika-related microcephaly in 2017 is as unbelievable as the case is distressing.

Justice Joan Charles last week ordered the Ministry of Health to provide specialised healthcare to the son of Kavita Ramkissoon-Ragoo and to implement proper protocols to assist the mother and child. The judge found a constitutional breach had occurred, as well as the several breaches of statutory duties owed by health officials, including the Minister of Health and his permanent secretary, to the family.

In 2016, the World Health Organization (WHO) declared Zika-related microcephaly a public health emergency of international concern and the causal link between the Zika virus and congenital malformations was confirmed. While the emergency ended in November of that year, and while cases of the virus later declined, transmission persisted in several countries.

The WHO drew up a strategy in June 2016 and resolved to help member states develop country guidance to provide adequate and integral care given the expected increase of microcephaly infants.

One most remarkable feature of this case, however, is the apparent failure of the TT ministry to implement proper protocols to help mothers who gave birth to babies born with this condition. “Apparent” because when exposed to the harsh light of litigation, guidelines, rules, policies and protocols which one would expect to be in place seemingly evaporated without a trace.

“The defendants breached their duty of full and frank disclosure that is owed by all public authorities…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,” Justice Charles found.

No explanation, she said, was given for the failure to publish or implement the said guidelines for several years, even “after pregnant women had been infected with the virus and hundreds of children had been born with microcephaly.”

Justice Charles also held there was no evidence by Chief Medical Officer Dr Roshan Parasram that despite the non-publication of guidelines, operational aspects of the policy were implemented.

Why, then, did Zika-related microcephaly slip, so dramatically, through the cracks?

Alternatively, if it did not, why was the State not able to bring forward evidence of its policies when this matter reached a court of law? The State had a legal duty to disclose even matters detrimental to it.

Meanwhile, financial assistance, like the flow of information, also appeared anaemic in this case with a grant falling off inexplicably.

But the ultimate cost of all of this, beyond the ordeal of the family involved, is the substantial sum that may yet be awarded in damages.