Appeal Court rules on State's operation of renal dialysis centres

CABINET has been given 42 days to make a decision on proposed variations in the construction and operation of renal dialysis centres at the Eric Williams Medical Sciences Complex (EWMSC) and the San Fernando General Hospital (SFGH).

In.a 115-page ruling on Thursday, Justices of Appeal Allan Mendonca, Prakash Moosai and James Aboud allowed an appeal by the State, but varied the initial orders of the High Court.

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 make a decision 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) and Biomedical Technologies Ltd (BTL). The judge found  the 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, public health facilities were very limited, with long waiting lists, and many dying from preventable infections, according to the Caribbean Kidney Disease Society (CKDS), which issued a press release on the court matter in March 2023.

In Thursday's ruling, the judges said 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 make a decision on the proposed variations within a reasonable time. In my view, 42 days is adequate,” Aboud, who wrote the decision, said.

“The Cabinet is ordered to decide within 42 days of this judgment whether or not to approve the variations proposed by Nephrology Services and Biomedical in accordance with the considerations identified by the trial judge in his judgment but without any limitation whatsoever to such other factors that, in its sole executive discretion, are deemed pertinent to the Cabinet’s decision whether to approve the proposed variations, to reject them, or to counter propose different variations to the master contract."

Aboud said Cabinet "must obviously consider, in accordance with its constitutional mandate, the efficacy of the proposed amendments in the national interest and, as well, the orbiting macroeconomic issues, freed of any imposed court-mandated directives of what are relevant considerations to decide whether to approve, reject, or counter-propose anything to the respondents’ requested variations to the master contract."

He said the Cabinet's delay in making a decision whether to approve the variations proposed "is unreasonable in light of the course of dealings between the parties.

"The North Central RHA obviously participated in the MOH’s preparation of and submission of the Note to Cabinet seeking the Cabinet’s approval to the variations, but a Cabinet Note is authored and presented to the Cabinet by a member of Cabinet, and never by a statutory corporation."

He said to promote certainty and bring finality to the matter, the Cabinet ought to make a decision on the proposed variations.

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

Aboud said the claim filed by CNSL and BTL was amenable to judicial review but neither benefited from a legitimate expectation that the Cabinet would make a decision or approve specific variations they proposed in two weeks, based on the chronology of facts arrived at from meetings held on October 18 and November 6, 2016.

He said the public statements by various ministers on the issue were not clear and because of this, the CKDS, which was also a party to the matter, could not have a legitimate expectation that the centres would be built in the terms set out in the unapproved variations proposed to Cabinet.

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

The CKDS had said both renal dialysis centres had been approved by the Cabinet, the MoH and the NCRHA since 2009 as part of a public-private partnership, on the basis that the State would not be liable for the construction and outfitting of both state-of-the-art centres and would only be required to pay for the renal services to each patient at agreed rates.

It was also agreed that after 13-and-a-half years of operation, the centres and equipment would be handed over free of charge to the State.

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

In 2017, CNSL and BTL 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 to the High Court, 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 now be reconsidered.

Mohammed accepted the evidence of the three entities and held that 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.

In the High Court, CNSL, BTL and CKDS were represented by Ramesh Lawrence Maharaj, SC, Ronnie Bissessar, SC, Tom Poole, KC, and Varin Gopaul-Gosine.

The Cabinet, the Minister of Health and the NCRHA were represented by Senior Counsel Douglas Mendes, Michael Quamina and Rishi Dass, instructed by Charles Law.