As case concludes... "Sir, Was it worth it?"
TTRNA, TTAM and PNATT members outside Hall of Justice on March 3rd 2020, following delivery of final Judgement.
On the 12th September 2019 Mr. David Murphy sought permission and was granted leave to apply for Judicial Review against the Nursing Council of Trinidad and Tobago (NCTT). Through his attorneys (Mr. Gerald Ramdeen, Mr. Umesh D. Maharaj, Ms. Dayadai Harripaul) Mr. Murphy sought the following:
i. A declaration that any decision of the NCTT made subsequent to the 14th . . . are null, void and of no effect.
ii. A declaration that the decision of the Respondent made at the 807th Ordinary Meeting of the Respondent held on or about Monday the 26th August 2019 to appoint Mr. Chris Craigwell as interim President of the Respondent is ultra vires the Nursing Personnel Act Ch.29:53. 3
iii. An Order directing the Registrar of the NCTT to withdraw the Notice issued by the Council of Trinidad and Tobago, published in the daily newspaper dated the 31st August 2019 and the 1st September 2019 giving notice of the decisions of the Respondent made at the 807th meeting of the NCTT.
iv. An order that the Respondent do pay the costs of this claim to be assessed by the Registrar of the Supreme Court in default of agreement.
The Court also made an interim declaration on the 12th September 2019, that any decision of the NCTT made after the 14th April 2019 by the last Council were null void and of no effect. This order was with immediate effect until the final determination of the matter (See pg. 4, item 8 of Final Judgement).
But what were the actions that Mr. Murphy was trying so hard, and was eventually successful, in getting the Court to make null, void and of no effect, which occurred during the period April 14th to August 26th, 2019?
1. The registration of 206 General Nurses, 2 Psychiatric Nurses, 9 midwives, and 1 nursing Assistant signed by the President (Mr. Murphy) (See pg. 13, item 31 of Final Judgement).
2. The issuance of 98 verification letters of nursing personnel, which were signed by the President (Mr. Murphy).
This order also caused the immediate effect of:
1. Stopping the rescheduled Nursing Council election planned to be completed by January 31st, 2020.
2. Nullifying exam results.
3. Postponing practical and written examination to be held by the NCTT.
4. Stopping the issuance of transcripts abroad, etc.
Through the interjection of TTRNA and TTAM at the second hearing, and the concerns expressed by the Associations due to the fallout of the order to our members and the profession, Justice Seepersad on the 16th September 2019 subsequently did the following:
1. Varied the initial order ‘stating that all actions during the period in question was null, void and of no effect, and now stating:
a. The Nursing Personnel Act makes no provision for the holding in office by any members after the expiration of the three-year term.
b. No Action can be taken by them on behalf of the NCTT.
c. The Minister of Health should make his appointments, as it is not contingent on the elections of the NCTT (See pg. 5, item 10 of Final Judgement).
2. Affixed the Associations (TTRNA, TTAM, and PNATT) as interested parties (See pg. 2, of Draft Order).
There was no appealing at this stage by of Justice Seepersad interim orders, due to two factors:
1. Not by the NCTT. Against the Principle of Natural Justice which implies “that no man shall be a Judge of his own cause” the Minister of Health appointed Mr. Murphy onto the NCTT, even though he was actively ‘suing’ the NCTT.
2. Not by the Associations, who were just brought in as interested parties, and were reluctant to prolong the proceedings and the inconveniences any longer that were already being faced with the Judicial Review that Mr. Murphy brought against the NCTT.
However, seeing that the Judge had already made such sweeping orders, and that Mr. Murphy was already appointed onto the NCTT by the Minister, there was no real reason to continue with the matter. Therefore, the NCTT lawyer, supported by the Associations, sought to end the matter by its Application filed on the 19th November 2019.
This was successfully countered by Murphy’s legal team and the Application was dismissed by Justice Seepersad (See pg. 5, item 12 of Final Judgement). This resulted in the case continuing till March 2020.
The Court then had to decide and make final orders on four (4) issues going forward:
1. Whether the members of the NCTT post April 12th & 24th 2019, had the authority to exercise any powers?
2. Whether the members of the NCTT post April 12th & 24th 2019, had the power to hold over in office after the expiration of their term?
3. Whether the decisions of the NCTT post April 12th & 24th 2019, are null, void and of no effect?
4. Whether the decision at the 807th meeting of the Respondent to remove Mr. Murphy as President of the NCTT and appoint Chris Craigwell as interim President (to complete the election process by January 31st, 2020) was valid? (See pg. 10, item 21 of Final Judgement).
The first three (3) issues were already substantially decided upon by the Judge in November 2019, thus the application by the NCTT lawyer and the Association to terminate the matter at that point. However, it is at issue 4, that Mr. Murphy wanted specific relief to be given. His removal as President of NCTT. Hence the continuation of the case for another three (3) months till its conclusion on March 3rd, 2020.
However, Justice Seeparsad had a different view which was expressed in his final Judgement. Stating, while the “Council” had no authority to execute decisions when the members voted to remove Mr. Murphy at the 807th Meeting, the Judge noted that Mr. Murphy was Not the President of the NCTT at that time. Therefore, voting to remove him and the consequent advertisement indicating same after, could not have caused Mr. Murphy any ‘Odium’.
The Judge went on to say Mr. Murphy, ‘participated in the illegal decision-making processes which unfolded post April 2019 and the need for public vindication simply does not arise’ (See pg. 18, item 49 of Final Judgement).
This is what all legal luminaries and long standing public officers who have contacted the Association over this period (and we thank them for their support) expressed their bewilderment that the possibility of someone benefiting financially from a wrong they engaged in, was impossible to fathom.
This was not lost on the Judge, when he stated, ‘It is also troubling that persons who act unlawfully or in breach of their statutory mandate, only seem to recognize 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’ (See pg. 18, item 49 of Final Judgement).
The Judge found that Mr. Murphy was not simply a part of the unlawful acts, but as he was performing the critical role as President way past 12th April 2019 up until 26th August 2019. It was Mr. Murphy that implemented the ‘unlawful and unauthorized effecting of the decisions’ (See pg. 19, item 52 of Final Judgement). “Insular concerns” and “personal agendas persistently trump propriety, practical implications and the pledge to serve” (See pg. 19, item 52 of Final Judgement).
Therefore, in addition to the previous interim orders made in November 2019 which has now became final orders, [(1) All decision made after 24th April 2019 is null, void and of no effect (2) No power for members to hold over after expiration of its
term, (3) Minister can appoint members before elected members are installed on the NCTT], the court also declared that:
1. Mr. Murphy was not the President of the NCTT when the decision to remove him was made at the 807th meeting.
2. The Judgement of the court to be sent to the Minister of Health with urgency (so the recommendations of Parliament intervention can be made).
3. No costs to be awarded (Therefore Mr. Murphy will have to pay his own legal fees for initiating this action. As the NCTT and the Associations will also have to do).
It is indeed ironic that, “the court urged the new quorate council to consider a review of the decisions so as to determine if it was minded to ratify same”. The same Council, who was headed by Mr. Murphy, who sought to nullify all the decisions of the past Council, is the same Council headed by the very person, who is once again tasked to ratify the decisions.
However, the Court noted, based on the information provided by both parties up until the delivery of the Judgement on March 3rd 2020, that the “call fell on deaf ears and the failure to act, engendered in the Court the uneasy feeling that there was no desire to adopt a non-adversarial approach which had the potential to relieve potential distress to the interested parties and other third parties who were impacted by the decisions” (See pg. 36, item 52 of Final Judgement).
Therefore, the Court stated, if the quorate Council, still does not act with the urgency . . . “to ratify the decisions”, then the 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” (See pg. 15, item 38 of Final Judgement).
TTRNA is aware of a hastily manufactured document released onto social media within 48 hours of Justice Seepersad ruling, purporting to be minutes of an NCTT meeting that took place in November 2019, which attempts to give the impression that the new council has already ratified the decision of the past Council. While there is no way to authenticate the validity of this unsigned and unstamped document, that it is in fact legitimate, TTRNA finds it curious that this information was never made available to Justice Seeparsad between November 2019 and March 2020, while debate on how to rectify the situation was ensuing.
To date, NCTT has not released any official correspondence, or placed in the gazette, indicating to the public and affected parties, that the illegal decisions taken between 15th April 2019 and 26th August 2019, have now been made legal by the new Council members. This fact, combined with what Mr. Murphy’s legal team proffered:
“Where there are consequences to third parties the Constitution itself provides a remedy that can and should be pursued by the legislative arm of the State to cure the unlawfulness” (See pg. 19, item 35 of Full Written Submissions of the Claimant in reply), and
“The legislature clearly did not share the view of the Respondent that bona fides cures illegality as there would be no need for the enactment of the Licensing Committee Validation Bill 2018. This is an example of the type of step that has to be taken to cure the illegality that was allowed to occur during the Post Term period”, (See pg. 23, item 47 of Full Written Submissions of the Claimant) and
“Where an illegality is found to exist, the Court must so declare. When that declaration is made it is the duty of the Executive and Legislature, in accordance with its constitutional mandate to take notice of the decision of the Court and take the necessary steps to remedy any adverse consequences that may flow from the declaration made by the Court”(See pg. 24, item 51 of Full Written Submissions of the Claimant).
At no point, in Mr. Murphy’s team several submissions to the Court, they believed or indicated, that the incoming Council members (bona fides), should just ratify all the illegal decisions of the outgoing Council members by simply agreeing that they are now legal at their first meeting. Surely, if it was so simple, then what was the reason for Mr. Murphy to undertake such a costly exercise of a Judicial Review and inconveniencing hundreds of nurses and midwives in the first place. When a simple show of hands from the new Council at their first meeting could have rectified everything.
This reinforces our call to have the Minister of Health initiate the legislative process. Our attorney has been tasked with writing the Minister of Health, citing the Judges advise. Once the legislative changes are made, it will prevent anyone with insular concerns and personal agendas, from challenging the actions of the NCTT on this matter in the future.
With regards to the way forward to properly populate the Nursing Council with its elected members, the following has transpired:
1. Justice Seepersad’s verbal recommendations that the Associations are best placed to manage the NCTT elections, as all nursing and midwifery personnel ought to be members;
2. Lack of response by the President of the Council, and by extension the remaining appointed members, to several letters requesting to meet to discuss the possible election process and provide the required resources to the Association;
3. Inability of the Minister of Health to get his appointees to meet with the Association; and
4. The legal submissions made by Mr. Murphy legal team – that the NCTT has no place and no power to conduct elections of members of Council (See pg. 4, item 6 of Full Written Submissions of the Claimant in reply).
Therefore, the Associations, begrudgingly, are being forced to organize the NCTT elections of nurses and midwives, from among its own members. In the coming weeks, the Associations will be providing further information on the NCTT elections. Also, the Association’s own Judicial Review matter against the Minister of Health, has been postponed and is set for hearing at the Hall of Justice on June 1st 2020, due to the national restrictions at this time. Upon completion of this case, the Association will release all remaining documents as to why we believe, the Minister of Health has erred in his recent appointments to the NCTT.
2020 – The Year of the Nurse (and Midwife), is proving to test the fortitude and spirit of nursing and midwifery personnel. From the imbroglio of NCTT to battling with Covid-19, the year has moved from planned celebrations to simply staying afloat. However, without doubt, we shall overcome . . . together and stronger.
N.B: Members will receive soft copies of the cited documents, including the Full Written Judgement by Justice Seepersad, in their emails for their perusal.