Justice Frank Seepersad
A HIGH COURT judge has warned that the health care sector could find itself in crisis mode if decisions taken by the Nursing Council between April to early October 2019 are not ratified.
Justice Frank Seepersad has also urged that elections for the council’s executive be held as a matter of urgency.”
In a decision on Monday, Seepersad voided all the decisions made by the council from April 19 to early October 2019, saying they were invalid since the council did not have the power to hold over in office after the expiration of its term.
The council’s three-year term ended on April 19, 2019, and on August 26, of that year, council members held an ordinary general meeting ousting David Murphy as president and appointing Chris Craigwell as interim-president.
Seepersad declared that since the council was not in existence after April 19, 2019, Murphy was no longer president so he was not affected by the decision made at the meeting.
The judge’s declarations were contained in a ruling on Murphy’s legal challenge in which he challenged the ouster and Craigwell’s appointment.
It was a hollow victory for Murphy who came in for criticisms from the judge.
According to Seepersad after Murphy's term expired in April 2019, he no longer held office but still “acted as if he was still the president.”
Seepersad also held as “frankly absurd” Murphy’s contention that his ouster “caused him to be subjected to odium.” He also said Murphy’s need for public vindication did not arise.
The judge said, "It is also troubling that persons who act unlawfully or in breach of their statutory mandate, only seem to recognise that fact when they no longer hold the said position.
"...Public interest advocates should not benefit from the review of their own unlawful, irrational or unreasonable decisions. The instant claimant was actively involved in the unlawful and unauthorised effecting of the decisions and ought to have sought the legal advice which he subsequently received and which presumably led to the institution of the instant proceedings, before he oversaw the processes which purported to effect the unlawful and unauthorised post April 2019 decisions," he added.
Because of Murphy's actions after his term as president ended, Seepersad made no orders for costs.
As a result of the ruling, decisions made after April 19 to October 7, 2019, when Health Minister Terrence Deyalsingh appointed his six members to the council legitimising the executive, are now in limbo.
These decisions include the registration of hundreds of nurses and the administering of practical and written examinations.
Seepersad was also critical of the new quorate council, which Murphy now heads, for failing to review the decisions made between April to October and determine if it would ratify them. He made the call in late October after the minister’s appointments were made.
He expressed hope that the quorate council will still act with urgency to determine if it would ratify the decisions.
“If they do not, then it is hoped that this court’s declaration would catalyse a legislative response so as to remedy any ensuing hardship which may unfold upon those to whom the voided decisions related.”
In a separate lawsuit, the minister’s decision to appoint selected members to the council, before any elected members were appointed, has been challenged by over 3,000 nurses representing several nursing bodies.
The nurses also say the minister’s decision to allow his six selected members to elect Murphy as president of the council when there are no other members on the board, was unreasonable and irrational. They are also asking the court to quash the decision to appoint Murphy as a member of the council and to revoke his appointment and have argued that the minister was aware they did not want the former president on the council.
However, Seepersad’s ruling addressed one of the issues raised in the nurses' challenge and he declared that the minister’s authority to appoint members to the council was not contingent on the election of the nine others as outlined in the Nursing Personnel Act.
The council consists of 16 members. Six are selected by the Minister of Health, nine are elected by the over 10,000 members of the profession and the Chief Nursing Officer serves as an ex-officio member. The council then votes for a president, vice-president and treasurer.
On Monday, Seepersad said it was inconceivable that elections” have not been held in a more timely manner given the critical function discharged by the council.
“Elections must be held as a matter of urgency,” he said, adding that the proper and efficient functioning of the health sector was heavily dependent upon the statutory obligations of the council.
Murphy was represented by attorneys Gerald Ramdeen, Umesh Maharaj and Dayadai Harripaul while Elaine Green represented the nursing council and Martin George represented the several nursing bodies.