An “immunity clause” that protected negligent doctors in the Cayman Islands from civil lawsuits was unlawful, a judge has ruled.

The controversial Section 12 of the Health Services Authority Law, repealed after media and public pressure following a separate legal ruling last year, was in contravention of the Bill of Rights, Justice Richard Williams ruled.

The declaration, in a judgment published last week, is an empty victory for Norene Ebanks, who is attempting to sue the Health Services Authority for alleged negligence which she claims led to her daughter, Donette Thompson, being born with severe birth defects in 2005.

Justice Williams also ruled that the charter of human rights, which was introduced in 2012, could not be applied retroactively and therefore did not impact her right to sue the authority and its doctors.

At age 12, Donette, referred to in the judgment as “P,” cannot walk, talk or eat solid food, and her mother has been left struggling to fund a lifetime of care.

In an earlier judgment in the same case, published in February last year, Justice Williams ruled that Section 12 of the HSA Law provided blanket immunity from medical malpractice suits for anyone who works for the authority, except in cases where “bad faith” could be proved.

In his latest ruling, he decided the advent of the Constitution and Bill of Rights had essentially made this clause illegal.

But he indicated that those rights did not exist when the alleged negligence occurred.

“The Bill of Rights cannot create a new obligation on the defendants that did not exist at the time. The rights arising from the Bill of Rights cannot, in the absence of clear words, apply retrospectively to remove the defendants’ immunity from liability defence that they could rely upon at the time of the events in 2005.”

Justice Williams also decided that the amended 2016 HSA Law, which removed the immunity provision, could not be applied retroactively.

Despite those decisions, he said he had gone on to consider the constitutionality of the original law.

He said, “This may be the first time that a court in any jurisdiction has had to consider the lawfulness of statutory provisions removing access to civil proceedings in respect of all claims of clinical negligence.”

He said the absence of legal redress in cases of hospital negligence breached sections 2, 3 and 9 of the Bill of Rights, covering the right to life, the right not to be subject to inhuman and degrading treatment and the right to a private and family life.

He wrote, “I am satisfied that the shortcomings in the law preventing P from seeking appropriate civil redress, having regard to the nature of this case, means that there has been a failure to provide an effective judicial system.”

He added that if he had not ruled that the Bill of Rights did not have retroactive impact, and therefore did not apply in this case, he would have made a declaration that Section 12 of the old law was incompatible with those rights.

“The state would be in violation in respect of its duty to make available judicial remedies capable of holding accountable those responsible for P’s life-threatening injuries and provided appropriate civil redress to P.”

The judgment may assist anyone who suffered serious injury as a result of medical negligence between the introduction of the Bill of Rights in 2012 and the change of the law in 2016, according to James Kennedy, a partner at KSG Attorneys at Law. He said Donette Thompson was in the unfortunate position that the timings of the injury and the introduction of the Bill of Rights resulted in her being unable to benefit from the decision.

“Donette’s case may well help other people who suffered serious injury between 2012 and 2016 and her case will definitely help people who sustain injury as a result of negligent treatment since the change of the law but unfortunately the decisions in the case to date, which is still before the Court, don’t help her directly.

“The Legislature here removed the immunity in 2016 but this doesn’t help Donette because the new law also doesn’t have retrospective effect and only changes the law for people who suffered injury in 2016 and afterwards.”

Similar immunity clauses exist in several other pieces of legislation. The National Roads Authority Law, the Airports Authority Law, the Development and Planning Law, the Monetary Authority Law and the Maritime Authority Law all contain an almost identical version of section 12 of the HSA Law. Mr. Kennedy said the legal ruling would not impact those laws.

“The finding of incompatibility doesn’t necessarily mean that immunity in other laws would be found to be in breach of the Bill of Rights as the finding here is limited to cases where life-threatening injuries or death occurs.”

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  1. From Wikipedia: “An ex post facto law …
    is a law that retroactively changes the legal consequences (or status) of actions that were committed, or relationships that existed, before the enactment of the law. ..In some nations that follow the Westminster system of government, such as the United Kingdom, ex post facto laws are technically possible, because the doctrine of parliamentary supremacy allows Parliament to pass any law it wishes….”
    Just 2 examples from Wikipedia:
    “Finland. Generally, the Finnish legal system does not permit ex post facto laws, especially those that would expand criminal responsibility. However, there have been three exceptional instances when ex post facto criminal laws have been used in Finland.”
    “Mexico ……retroactive application of the law is prohibited if it is on detriment of a person rights. But the new law can be applied if it benefits the person.”
    Why not to consider this case to be exceptional and apply the new law retroactively?
    This also bring a question, Why new pension law is being applied retroactively?