The failure of the Ministry of Health to provide specialised healthcare to a six-year-old boy of Chaguanas with birth defects associated with the Zika virus is set to cost the State significant compensation.
Delivering a judgment on Friday, High Court Judge Joan Charles upheld a judicial review lawsuit brought against Health Minister Terrence Deyalsingh, the ministry’s permanent secretary, and the Attorney General’s Office by Kavita Ramkissoon-Ragoo on behalf of her son Davyn.
Justice Charles ruled that Deyalsingh and the ministry’s permanent secretary breached their duties under the Regional Health Authorities Act by failing to implement comprehensive guidelines and protocols for treating Davyn and other children like him.
She stated that both Deyalsingh and the ministry’s permanent secretary would have been aware of their duties but failed to explain why they did not comply.
Justice Charles said: “It should be noted that no explanation has been proffered by the defendants for the failure to publish and/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 like DKR had been born with microcephaly.”
“In the circumstances, it was their duty to disclose them. Their failure to do so led me to conclude that such evidence was not available,” she added.
She also stated that it constituted a breach of the country’s international obligations under the United Nations Convention on the Rights of the Child (UNCRC) and the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD).
Justice Charles ruled that the ministry’s failure to provide urgent and specialised care to Davyn breached his constitutional right to life and ordered that he and his family receive compensation including aggravated damages, which are to be calculated by a High Court Master at a later date.
She also ordered that the ministry take immediate steps to begin providing Davyn with the treatment he needs and to provide financial assistance to his family on an ongoing basis.
On January 29, 2016, Deyalsingh declared the Zika virus a national public health emergency three days before the World Health Organization (WHO) declared it a global health emergency.
A specialist committee including former Chief of Staff of the Mt Hope Women’s Hospital Dr Karen Sohan, who served as the family’s expert witness in the case, was appointed to develop protocols for the management of Zika-positive pregnant women and their offspring.
In August 2016, draft interim clinical protocols were submitted at a time when there were already 294 Zika-positive pregnancies in T&T.
In late October, Deyalsingh held a press conference during which he promised that the ministry would provide clinical and developmental support to children born with microcephaly due to Zika, that the Ministry of Social Development would provide grants, and that there were proper protocols in place.
When Davyn was born in February 2017 the guidelines and protocols were not yet finalised.
However, his family only learned that after their lawyers Kingsly Walesby, Sarfraz Alsaran, and Alvin Ramroop first sued the Health Ministry after it failed to disclose details of its official policy for treating the Zika virus and associated complications as allegedly promised by Deyalsingh.
In deciding the case, Justice Charles noted that the family did not have a legitimate expectation based on Deyalsingh’s statements.
“The statements outline no specific details as to how their plans were to be implemented,” she said.
She also stated that he never gave details about the quantum and frequency of the grants for those affected as she pointed out that the family received three $1,150 payments.
In her judgment, Justice Charles noted that despite the emotional and psychological burden of caring for a special needs baby, Davyn’s family was not seen by the hospital’s psychiatric team.
She also noted that a social worker only visited the family’s home when Davyn was 11 months old.
“No care was given to the claimant during clinic visits with DKR relative to recognition of seizures, breathing issues, training of caregivers in CPR,” she said.
Justice Charles also pointed out that the failure to provide Davyn with physiotherapy within the first year of his life resulted in him having delayed motor skills.
Justice Charles ordered the State to pay the family’s legal costs for pursuing the lawsuit.
The State’s legal team was led by Senior Counsel Russell Martineau.