Legislature debated hospital’s legal ‘immunity’ in 2004

Opposition voted no, ruling party voted in favor

Amendments to the Cayman Islands Health Services Authority Law that a local judge said provides authority employees with blanket immunity except in cases where “bad faith” is proven, were fully debated more than a decade ago with the ruling government supporting the legal change over the protests of then-opposition members, the Cayman Compass can reveal.

Legislative Assembly Hansard records from December 2004 show amendments to the bill introduced by then-Health Minister Gilbert McLean changing the language of the former section 12 of the Health Services Authority Law to state: “Neither the authority, nor any director or employee of the authority, shall be liable for damages for anything done or omitted in the discharge of their respective functions or duties unless it is shown that the act or omission was in bad faith.”

Then-Leader of the Opposition Kurt Tibbetts pointed out in the Dec. 13, 2004 House debate that the language at the end of that section was proposed to be changed from the previous law that stated “unless it is shown that the act or omission resulted from their dishonesty, fraud or willful neglect.”

Mr. Tibbetts said lawmakers needed to understand what the change in terminology meant.

“It seems to me that ‘bad faith’ is an all-encompassing term and one may have the question: Where does neglect come into it?”

Then-freshman opposition member Alden McLaughlin added: “I am reminded of the old adage that the chickens do come home to roost. No doubt all will be revealed if the litigation proceeds and if there is eventually a result.”

The litigation Mr. McLaughlin referred to involved a case in the courts at the time.

Last month, a judgment issued by Grand Court Justice Richard Williams upheld section 12 of the Health Services Authority Law, granting what amounts to blanket immunity for hospital employees. However, Justice Williams stated in the ruling that he was “uncomfortable with such immunity.”

The ruling was made in the case of Norene Thompson, whose child had severe birth defects which she alleged were due to negligence in the management of her delivery at the Cayman Islands Hospital. The doctor involved in the delivery has denied she was negligent.

According to Mr. McLaughlin in 2004: “If employees and [HSA] directors have done something which is, to use [the law’s 2004 wording], dishonest, fraudulent or willfully neglectful, then in my respectful view, they ought to be held liable for it. I take issue with the government bringing this bill at this time.”

Mr. McLaughlin, now premier of the Cayman Islands, advocated at the time that section 12 of the law should not have been amended to include the “bad faith” phrase.

Minister Frank McField argued during the debate that “bad faith” should encompass all dishonest, fraudulent or willfully neglectful acts.

Minister McLean indicated in his reply to the debate that “There is certain disagreement still with the legal wording, but the wording that I have to use or to bring to this Honorable House is that which satisfies the legal department of the government and the attorney general.

“It is my understanding, under advice, that the words ‘dishonesty,’ the ‘acts of dishonesty,’ ‘fraud’ and ‘willful neglect’ are covered under the term ‘bad faith.’” Mr. McLean said.

The Hansard records show a divided Legislative Assembly approved the amendments to the HSA Law later that same day, with government members McKeeva Bush, Gilbert McLean, Frank McField, George McCarthy, Kurt De Freitas, Kenneth Jefferson and Rolston Anglin supporting it. Opposition members Kurt Tibbetts, Alden McLaughlin, Anthony Eden and Edna Moyle voted against it.

Absent from the vote were then-Minister Roy Bodden, Minister Juliana O’Connor-Connolly, Capt. Eugene Ebanks, Cline Glidden, Lyndon Martin and Arden McLean, according to Hansard records.