Senior Reporter
derek.achong@guardian.co.tt
The Privy Council will have to decide a lawsuit over a complex contract for renal dialysis centres at the Eric Williams Medical Complex in Mt Hope and the San Fernando General Hospital.
In January, the Court of Appeal gave Prime Minister Dr Keith Rowley and his Cabinet 42 days in which to decide changes to the contract.
The Cabinet appealed as the Appeal Court partially upheld an earlier decision by High Court Judge Robin Mohammed to approve the lawsuit brought by two companies and an NGO against it (the Cabinet) and the North Central Regional Health Authority (NCRHA).
During a hearing on Wednesday, the parties informed Appellate judges Peter Rajkumar, Maria Wilson, and James Aboud that they had agreed on the preparation of a record of appeal, which is needed to pursue the final appeal before the country’s highest appellate court.
They also indicated that an application for final leave for the appeal will be filed in September.
The contractual arrangement began in 2008 when Biomedical Technologies Ltd (BTL), a local company, and United Kingdom-based Fresenius Medical Care (Holdings) Ltd (FMCHL) won a bid to construct the centres.
Under the agreement, the companies, through a joint venture, Comprehensive Nephrology Services Limited (CNSL), agreed to fund the construction and operationalisation of the centres.
CNSL would own the centres and collect the profits from treating citizens for the State for 13 and half years and would then transfer control of it to the State.
CNSL then hired a subcontractor to design and build the centres, which were estimated to cost $139 million inclusive of outfitting.
The NCRHA agreed to assign leases for the lands the centres were to be constructed on to CNSL for it to be used as security for financing. CNSL then applied to have the leases vested with the subcontractor.
After several years of delays, in 2015, the leases for the subcontractor were certified.
The NCRHA also agreed to FMCHL being removed from the master contract as BTL had purchased its entire stake in CNSL.
CNSL then expended its own funds to start extensive work on the project.
However, in 2016, the NCRHA indicated that the removal of FMCHL required Cabinet approval.
The company was then advised to stop the project as Cabinet was concerned over FMCHL no longer being involved as it had experience in operating such facilities overseas.
While the CNSL expected to get approval within two weeks, none was forthcoming and it filed the lawsuit.
Caribbean Kidney Disease Society (CKDS), a local NGO for patients suffering from kidney disease, joined as it claimed that the people it represents were aggrieved by the delay as they were not able to receive the specialised care promised at the centres.
In deciding the case, Justice Mohammed made a similar order to his colleagues in relation to the Cabinet making a decision on the changes to the contract.
He also found that the companies and the CKDS had a legitimate expectation that the changes would have been approved.
In the appeal, Justice Aboud ruled that he (Justice Mohammed) was right to make the order giving the Cabinet a deadline to decide.
“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,” Justice Aboud said.
However, he agreed with the State that his colleague was wrong to rule that there was a legitimate expectation that the changes would be approved.
He noted that the Cabinet was entitled to approve or reject them (the changes) or propose different variations when it considered the issue.
He also ruled that the constitutional rights of the CKDS members were not breached as they did not have a right to a particular standard of public health care as contended.
“I find the judge erred and was plainly wrong to make the findings that he did and that the declarations and orders which he made in relation to the decision of the Cabinet, the procedural or substantive legitimate expectation rights, and the right to life constitutional provisions cannot be supported by law,” he said.
“The court has neither the power to direct a public authority regarding the factors which it must take into account when making an executive decision nor the power to mandate or, by implication, coerce a public authority, whether expressly or in effect, to make a particular decision,” Aboud added.
The State was represented by Douglas Mendes, SC, Michael Quamina, SC, Rishi Dass, SC, and Charles Law.
The companies and the CKDS were represented by Tom Poole, KC, Ramesh Lawrence Maharaj, SC, Ronnie Bissessar, SC, and Varin Gopaul-Gosine.