Soares and Hamilton Medical Center Ltd v Bermuda Health Council
| Jurisdiction | Bermuda |
| Judgment Date | 08 April 2021 |
| Docket Number | Civil Jurisdiction 2020 No 237 |
| Court | Supreme Court (Bermuda) |
[2021] Bda LR 28
In The Supreme Court of Bermuda
Civil Jurisdiction 2020 No 237
Mr K Robinson and Mr K Masters for the Applicants
Mr B Adamson for the Respondent
The following cases were referred to in the judgment:
South Bucks District Council and anor v Porter (No 2) [2004] UKHL 33
R (on the application of C) v Financial Services Authority [2012] EWHC 1417
Asha Foundation v Millennium Commission [2003] EWCA Civ 88
Hereford Waste Watchers Ltd v Hereford [2005] EWHC 191
Davidson v Scottish Ministers [2004] UKHL 34
Porter v Magill [2001] UKHL 67
Tucker v Public Service Commission [2020] Bda LR 9
Meerabux v Belize [2005] 2 AC 513
Hofstetter v London Borough of Barnet [2009] EWHC 3282
R v Leicestershire Fire Authority ex parte Thompson [1979] IRLR 166
R v Chesterfield Borough Council ex parte Darker Enterprises Ltd [1992] COD 465
Lawe v Minister of Labour, Home Affairs & Public Safety [2005] Bda LR 11
R v Hampshire County Council ex parte W [1994] ELR 460
Council of AME Churches and Tweed v Minister of Home Affairs [2017] Bda LR 66
HMB Holdings Ltd v Antigua and Barbuda [2007] UKPC 34
Coxon et al v Minister of Finance et al [2007] Bda LR 78
Pitcher v Commissioner of Corrections and anor [2011] Bda LR 68
Minister of the Environment v Rodrigues Trucking and Excavating [2004] Bda LR 39
Guide Dogs for the Blind v Box [2020] EWHC 1948
Re Blast 106 Ltd's Application for Judicial Review [2015] NICA 16
Application for judicial review — Provision of medical services under standard health benefit — Whether irrational decision — Whether appeals panel was impartial — Bias — Adequate reasons — Court's discretion to make declaratory order and substitute its own decision
JUDGMENT of Mussenden J
1. In these proceedings dated 21 July 2020 Dr Soares and the Hamilton Medical Center Ltd seek judicial review of the decisions by the Bermuda Health Council (“BHC”) dated 6 July 2020 (“First Appeal Decision”) and 29 September 2020 (Second Appeal Decision, and together with the First Appeal Decision “the Appeal Decisions”).
2. The Appeal Decisions refused the Applicants' appeal (“Appeal”) against an earlier decision of the BHC dated 22 January 2020 (“SHB Decision”) denying the Applicants' application (“SHB Application”) to provide certain medical services (“Services”) under the Standard Health Benefit (“SHB”).
3. Dr Soares is a Bermudian physician who has practiced general medicine for 26 years, 21 of which have been in Bermuda.
4. The Second Applicant is the medical practice of which he is the medical director. It was established by Dr Soares in or about 2007 and until January 2021 was providing general medical services and medical physical assessments (“GP Services”), medical laboratory blood testing and Ultrasound Imaging (“Ultrasound”) on a walk-in basis, medical and ancillary services (‘together ‘Original HMC Services’) to the Bermuda public from a location on Victoria Street in Hamilton.
5. In January 2021 the Applicants moved its operations to a purpose built building located on Burnaby Street in Hamilton. In addition to being equipped to offer the Original HMC Services, the Applicants also installed medical equipment with a view to offering additional services through a trading name of “Hamilton Medical Center — Burnaby Urgent Care & Medical Imaging”. These additional services would include urgent medical services (“Urgent Care”) as well as the specific imaging services Magnetic Resonance Imaging (“MRI”), Computed Tomography scans (“CT Scans”), X-Ray, Mammography, Bone Densitometry, Cardiac Investigations and Ultrasound services.
6. Since opening on Burnaby Street, the Applicants have become one of only two private providers in Bermuda offering MRI and CT Scans. As submitted by the Applicants, the only other privately owned facilities providing MRI and CT Scans have a common ownership. Those other facilities have permission to provide MRI and CT Scans under SHB.
7. The Respondent is a body created by the Health Council Act 2004 (“the 2004 Act”). Section 5 of the 2004 Act sets out the statutory functions of the Respondent which includes:
“(a) to ensure the provision of essential health services and to promote and maintain the good health of the residents of Bermuda;
(b) to exercise regulatory responsibilities with respect to health services and to ensure that health services are provided to the highest standards;
(c) to regulate health service providers by monitoring licensing and certification, establishing fees in respect of the standard health benefit, and establishing standards and codes of practice;”
8. The Respondent regulates the process through which health services providers can be approved to provide services under the SHB. The Respondent has been operating a non-statutory application policy called the Standard Health Benefit Proposal Guide V.2 dated 18 October 2018 (“SHB Proposal Guide”) which sets out how health service providers can make an application for SHB approval.
9. As a result of the Appeal Decisions the Applicants seek judicial review of those decisions. They submit that the Respondent's decision to reject the Appeal is irrational in the sense that it is a decision which no sensible person who had applied their mind to the question of whether or not to grant the SHB Application could have made. Further, or alternatively, the Respondent made the decision by unlawfully fettering its discretion to consider the SHB Application fairly.
10. The Applicants submit that the result of the Respondent's decision is the preservation and perpetuation of a private sector monopoly for the provision of CT Scans and MRI services under the SHB. Also, they submit that the decision has caused a reduction in competition in other areas of the SHB and it has reduced access to such services for Bermuda's residents. Further, they submit that each of these outcomes are contrary to the policy reasons for which the Respondent has been granted the discretion to approve SHB applications, namely to ensure the provision of access to affordable, quality health care services to Bermudians.
11. The Applicants seek relief as follows:
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i. An order of certiorari quashing the Appeal Decisions.
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ii. A declaration that X-Ray, MRI, CT Scans and Ultrasound are services which can be provided under the SHB by the Applicants pursuant to the Health Insurance (Standard Health Benefit) Regulations 1971 (“Regulations”) without the approval of the BHC.
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iii. An Order reversing the Appeal Decisions and approving the Applicants' application to provide the medical services applied for in its application dated 6 March 2019 under the SHB with immediate effect.
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iv. Alternatively, a direction that the Appeal be reconsidered by a properly reconstituted fair and impartial appeals panel of the Respondent directed to take into account only relevant considerations and no irrelevant ones.
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v. Damages or such further or other relief as the Court may deem appropriate.
12. On 10 February 2021 the Court granted leave to file an Amended Notice of Application for Leave to Apply for Judicial Review and Statement of Grounds as follows.
13. Ground 1 — Breached the rules of procedural fairness in that the Respondent failed to provide any, or any adequate reasons for the Second Appeal Decision and members of the Second Appeals Panel were not impartial.
14. Ground 3 – Took into account irrelevant considerations of a moratorium and self-referrals.
15. Ground 4 – Fettered its discretion and/or acted irrationally
16. Ground 5 – Made a decision so unreasonable that no reasonable public body properly advised could have made it.
17. Ground 6 — The Respondent does not have the power to determine the Applicant's ability to provide MRI, X-Ray, Ultrasound and CT Scan services under the SHB.
18. On 6 March 2019 the Applicants applied to the Respondent for Mid-Year approval to provide imaging services under the SHB at its new location upon completion of the building on Burnaby St.
19. Also on 6 March 2019, the BHC announced, without prior warning, that a moratorium would be placed on all provider-submitted SHB applications for new services until further notice (“the Moratorium”).
20. After some time, the BHC agreed to exempt the SHB Application from the Moratorium indicating that the SHB Application could be supplemented with additional documents up until 1 July 2019.
21. On 28 June 2019, the BHC acknowledged and accepted supplemental documents submitted by the Applicants as the Applicants' final submission dated 27 June 2019 in respect of the SHB Application. The Applicants submit that the SHB Application explained the need for the services they intended to supply and the neutral effect on the SHB loss ratios.
22. The Application was considered by various committees of the Respondent including the Health Technology Review Committee (“HTRC”) and the SHB Review Committee. Dr Brathwaite, the Respondent's CEO, attended each of these committee meetings. The Applicants submit that Dr Brathwaite did participate in the deliberations. Dr Brathwaite states “I attend all such meetings however as always, I abstained from voting. My role, as I see it, is to guide the process and help the committees understand the process and what has gone on before. I always abstain from the actual decision.”
23. On 22 January 2020 the SHB Review Committee issued the SHB Decision, rejecting the SHB Application and citing various reasons including that the SHB Application did not meet the Key Mid-Year Criteria, and specific concerns from the HTRC that the First Applicant would self-refer and/or provide unnecessary treatments resulting in an increase in the use of...
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