Derek Achong

Se­nior Re­porter

derek.achong@guardian.co.tt

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.