The court judgment striking down the “immunity clause” in the Health Services Authority Law may be a hollow victory for Norene Ebanks and her disabled daughter Donette Thompson, but it could turn out to be a landmark triumph for other members of our society and for the general concept of justice in the Cayman Islands.
In a recent ruling, Justice Richard Williams determined that the controversial “Section 12” of the HSA Law was in contravention of Cayman’s constitutional Bill of Rights. Ms. Ebanks has been trying to sue HSA for alleged negligence she claims led to her daughter being born with severe birth defects in 2005. Up to this point, she had been blocked by the authority’s invoking of its blanket immunity from such suits, except where “bad faith” could be proved.
Unfortunately for Ms. Ebanks and Donette, Justice Williams ruled that the Bill of Rights, which took effect in 2012, could not be applied retroactively and so did not impact her family’s situation. Where Ms. Ebanks has to turn now in her pursuit of justice is unclear.
What is clear, however, is that the ruling does open a window for potential claims from people who have suffered because of HSA actions since 2012. We do not know if there are any complainants to step forward, but the justice has effectively stripped the public health authority of the Section 12 armor protecting it for the past five years. For those victims, the struggle of Ms. Ebanks and her daughter is anything but hollow.
Last year, under public pressure and following strong editorials published in the Compass, lawmakers repealed the Section 12 provision of the HSA Law – but they left untouched identical or similar clauses that exist in several other pieces of legislation.
When the controversy over the existence of Section 12 began heating up, an initial reaction from politicians and officials was to attempt to deny that the consequences of the immunity provisions were deliberate. The fact that lawmakers repealed Section 12 from the HSA Law, but have not taken action on immunity clauses in other legislation, is incontrovertible evidence of their intentions: Specifically, to protect public entities from accountability if they harm or kill a person or destroy their property.
While Justice Williams’s ruling does not immediately affect those other laws, it could crack open the door for future challenges, particularly when life-threatening injuries or death occurred. (Hypothetically, that gateway could be blown wide open depending on a court’s application of other sections from the Bill of Rights which did not factor into last week’s ruling. For example: “Government shall not interfere in the peaceful enjoyment of any person’s property” … or … “All decisions and acts of public officials must be lawful, rational, proportionate and procedurally fair.”)
We do not doubt or disagree with Justice Williams’s interpretation of the law, limiting the recourse that Ms. Ebanks and Donette have through the courts.
That being said, there is a distinction between “legal” justice (which Justice Williams must adhere to) and “social” justice (which our government should adhere to). Fundamentally speaking, Ms. Ebanks’s motivations have not been to enrich herself or to seek retribution, but to ensure that her disabled daughter receives proper care.
We do not understand the purpose of government’s response, whether it was meant to protect the HSA or certain individuals, to preserve the immunity clause itself, or simply an invocation of the immunity clause by reflex.
Regardless of legal strictures, it is a primary duty of our government (and any government) to provide for the needs of the most vulnerable members of society, who legitimately cannot provide for themselves. Instead of expending resources on attorneys’ fees, legislative drafting and political workarounds, Cayman’s government should be focusing on a moral imperative: Doing the right thing for Donette.