Sascha Wil­son

Se­nior Re­porter

sascha.wil­son@guardian.co.tt

A High Court judge has grant­ed leave to a woman to seek ju­di­cial re­view chal­leng­ing the re­fusal of the South West Re­gion­al Health Au­thor­i­ty (SWRHA) to re­lease the med­ical records of her de­ceased fa­ther.

Sheri­dan Ma­habir filed ac­tion against the au­thor­i­ty, af­ter her re­quest for the records three years ago un­der the Free­dom of In­for­ma­tion Act (FOIA) was de­nied.

While the au­thor­i­ty based its re­fusal on cer­tain points of law, Jus­tice Ava­son Quin­lan-Williams found the au­thor­i­ty had “whol­ly failed” to sat­is­fy the court of the jus­ti­fi­ca­tion for with­hold­ing the re­quest­ed in­for­ma­tion.

In her judg­ment, Quin­lan-Williams said, “The court is sat­is­fied that it should grant leave to the ap­pli­cant to ap­ply for ju­di­cial re­view. The court notes that, based on the facts as found, it is like­ly, with­out more, that this would be an ap­pro­pri­ate case where the court would use its own dis­cre­tion to per­form the sec­tion 35 over­ride, which favours dis­clo­sure of ex­empt doc­u­ments in the pub­lic in­ter­est, and di­rects the SWRHA to dis­close the doc­u­ments.”

Ma­habir re­quest­ed the med­ical records to de­ter­mine whether there was a case of clin­i­cal neg­li­gence against the au­thor­i­ty in the death of her fa­ther, Ra­sul Mo­hammed.

Her fa­ther was ad­mit­ted to the San Fer­nan­do Gen­er­al Hos­pi­tal for an in­jury to his spine in Feb­ru­ary 2020 and un­der­went surgery.

Ac­cord­ing to the court doc­u­ments, Ma­habir saw that her fa­ther was left un­at­tend­ed in soiled di­a­pers many times, and his health de­te­ri­o­rat­ed.
He even­tu­al­ly suf­fered a se­vere in­fec­tion of his low­er back and de­vel­oped huge bed­sores. He died on Ju­ly 16, 2020, and the cause of death was giv­en as sep­sis and para­plegic de­hy­dra­tion/anaemia.

The au­thor­i­ty’s case was that no de­ci­sion was made to de­ny her re­quest, but had in­di­cat­ed that her re­quest con­tained per­son­al in­for­ma­tion that was ex­empt un­der Sec­tion 30 of the FOIA.

How­ev­er, the au­thor­i­ty agreed to re­lease the doc­u­ments if Ma­habir pro­vid­ed the grant of pro­bate/let­ters of ad­min­is­tra­tion.

Af­ter Ma­habir in­di­cat­ed that she did not want to spend $8,000 to ob­tain a grant be­fore see­ing her fa­ther’s med­ical records, she said the au­thor­i­ty re­quest­ed a statu­to­ry de­c­la­ra­tion out­lin­ing her re­la­tion­ship to and right to the med­ical notes of the de­ceased, as well as proof of non-ob­jec­tion from the oth­er ben­e­fi­cia­ries of the de­ceased’s es­tate.

Ma­habir con­tend­ed that the au­thor­i­ty’s re­liance on the pro­vi­sions of the Wills and Pro­bate Act and the Ad­min­is­tra­tion of Es­tates Act was mis­con­ceived and il­le­gal.

Jus­tice Quin­lan-Williams found that the FOIA was clear on the pro­ce­dure in the case of a re­quest for per­son­al in­for­ma­tion of a de­ceased in­di­vid­ual.

“The court agrees with the ap­pli­cant/in­tend­ed claimant’s sub­mis­sion that a pub­lic au­thor­i­ty can­not erect un­nec­es­sary hur­dles to hin­der the ob­ject of the FOIA,” she said.

The judge or­dered the au­thor­i­ty to pay Ma­habir’s costs cer­ti­fied fit for se­nior coun­sel and one ju­nior coun­sel to be as­sessed by the Reg­is­trar in de­fault of agree­ment.

Ma­habir was rep­re­sent­ed by at­tor­neys Anand Ram­lo­gan SC, Jayan­ti Lutch­me­di­al, Renu­ka Ramb­ha­jan, in­struct­ed by Ché Din­di­al from the Free­dom Law Cham­bers, while the au­thor­i­ty was rep­re­sent­ed by at­tor­ney Roger Kawals­ingh, in­struct­ed by Car­la Sci­pio.