Tawanna Wedderburn v The Bermuda Health Council Dr. Alicia Stovell-Washington Minister of Health Premier of Bermuda

• Jurisdiction: Bermuda
• Judge: Justice Kessaram,Kessaram
• Judgment Date: 09 October 2019
• Neutral Citation: [2019] SC Bda 67 Civ
• Date: 09 October 2019
• Docket Number: CIVIL JURISDICTION
• Court: Supreme Court (Bermuda)

[2019] SC (Bda) 67 Civ

In The Supreme Court of Bermuda

Before:

Hon. Assistant Justice Kessaram

CIVIL JURISDICTION

2019: No. 087

Between:

Tawanna Wedderburn

Applicant

and

The Bermuda Health Council

1 ^st Respondent

Dr. Alicia Stovell-Washington

2 ^nd Respondent

Minister of Health

3 ^rd Respondent

Premier of Bermuda

4 ^th Respondent

Appearances:

Mr. Eugene Johnston, Smith Bean & Co., for the Applicant

Mrs. Juliana Snelling, Canterbury Law Limited, for the 1 ^st and 2 ^nd Respondents

Mr. Charles Richardson, Compass Law Chambers, for the 3 ^rd and 4 ^th Respondents

Section 9(1) Bermuda Health Council Act 2004 — Termination of Chief Executive Officer's employment — Amenability of Decision to Judicial Review

JUDGMENT ON PRELIMINARY ISSUE

Introduction

1 This is the Court's decision on a preliminary issue regarding the termination of the Applicant's employment as Chief Executive Officer (“CEO”) of the Bermuda Health Council (“BHC”). The question arises in the context of an application for judicial review commenced by the Applicant which, although mainly concerned with the loss of her employment, also seeks other relief not directly connected with the termination of such employment, e.g., a claim that the Minister of Health be ordered to “ consult with the Bermuda Health Council … and then make regulations pursuant to section 15 of the Bermuda Health Council Act 2004”; and a claim (which presumably arises out of the decision to terminate the Applicant's employment, although not stated to be so) for damages for misfeasance in public office against the Premier, the Minister of Health, the Chairman of the Bermuda Health Council and/or the Bermuda Health Council.

2 The Applicant was appointed CEO of the Bermuda Health Council in January 2016 after serving in an acting capacity from July 2015. She had prior to that been working for the BHC since February 2007 as an ordinary staff member, at first on secondment on a part-time basis from the Bermuda Hospitals Board and since April 2008 as a full-time employee of the BHC. On the 7 December 2018 her employment was terminated with payment in lieu of notice.

3 The Applicant alleges that the termination of her employment was “ politically motivated” and supports her claim with an affidavit describing in some degree of detail with supporting documents the events leading to her ousting.

The Bermuda Health Council

4 Before delving into the issues relating to her termination, it is important to understand the purpose and functions of the BHC. The Bermuda Health Council is a body corporate which may sue or be sued in its corporate name and which may enter into contracts and do all things necessary for the performance of its functions. It is a creature of an Act of the Legislature entitled the Bermuda Health Council Act 2004. The BHC's general purpose is stated in the Act (s. 3) to be “ to regulate, coordinate and enhance the delivery of health services”.

5 The functions of the BHC with respect to healthcare in Bermuda are comprehensive and wide-ranging. They are stated in s. 5 of the Act. It is helpful if they are stated in their entirety. They are:

• (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;

• (d) to regulate health professionals by monitoring licensing, certification, standards and codes of practice;

• (e) to licence health insurers;

• (f) to identify and publish goals for the health care system, to coordinate and integrate the provision of health services, and make recommendations to the Minister on the prioritisation of initiatives with respect to health services;

• (g) to licence health service providers;

• (h) to regulate the price at which drugs are sold to the public;

• (i) to establish and promote wellness programmes;

• (j) to conduct research, collect, evaluate and disseminate to the public information on the incidence of illness and other relevant information necessary to support objective decision making with respect to public health and the optimal use of resources; and

• (k) to advise the Minister on any matter related to health services that may be referred to the Council by the Minister.

6 The Bermuda Health Council is a body of persons comprised of the Chief Medical Officer, the Chief Executive Officer (the Applicant, prior to her dismissal), the Permanent Secretary of the Ministry of Health and Family Services, the Financial Secretary (all of whom are ex officio members); and not less than nine nor more than eleven other “ ordinary members” appointed by the Minister.

7 The appointment, remuneration etc. of the Chief Executive Officer of the Council are fixed by the Council with the approval of the Minister. Section 9 of the Act states:

• “ 9(1) There shall be a Chief Executive Officer of the Council who shall be appointed by the Council with the approval of the Minister and whose services shall not be terminated by the Council except with the like approval.

• (2) The remuneration, emoluments, terms and conditions and period of service of the Chief Executive Officer shall be fixed by the Council with the approval of the Minister and shall not be altered except with the like approval”.

Events Leading to Termination of the Applicant

8 According to the Applicant, the lead up to her termination began with a decision of the BHC to institute new fees for Magnetic Resonance Imaging (MRI) and Computerized Tomography (CT) Scans which were to take effect on 1 June 2017. The only provider of such services in Bermuda at the time were (a) Bermuda HealthCare Services (“Bermuda Healthcare”), which was founded by the former Premier of Bermuda, Dr. Ewart Brown (referred to herein as “Dr. Brown”), who remained at all relevant times its Executive Chairman; and (b) the King Edward VII Memorial Hospital (“the Hospital”), which is managed and administered by the Bermuda Hospitals Board, a statutory corporation established under the Bermuda Hospitals Board Act 1970, the majority of whose members are appointed by the Minister of Health.

9 Standard Health Benefits (SHB), which every employer in Bermuda is obliged to provide insurance coverage for at the cost of the employer and employee, include outpatient diagnostic imaging services (DI) provided by diagnostic facilities and at rates which have been approved by the Council: Regulation 3(1)(xiv) Health Insurance (Standard Health Benefit) Regulations 1971. Bermuda Healthcare was approved by the Council as a health services provider of DI at the same rates charged by the Hospital.

10 Although the Council has the power to regulate the fees for standard health benefits charged by health service providers directly, no regulations (which the Minister has the power to make under s. 15 of the Act) have yet been passed.

11 The Hospital's fees for medical services are fixed by regulations made under the Bermuda Hospitals Board Act 1970 by the BHB with the approval of the Minister. In 2017 the Minister became obliged to consult with the Council before approving fees charged by the Hospital for services within the SHB.

12 In 2017 the Council recommended to the Minister and the Minister approved new rates for medical services within the SHB (including DI) provided by the Hospital. The new rates are stated in the evidence to be based on an internationally recognized model of relative value units known as the Resource Based Relative Value Scale (RBRVS). The new fees for the Hospital were to come into effect on 1 June 2017. The rates for DI were significantly less than what the Hospital previously charged. Because Bermuda Healthcare's approved rates for DI were tied to what the Hospital charged, its reimbursement rates would, therefore, automatically be reduced on 1 June 2017 so that they stayed in line with the Hospital's rates approved by the Minister.

13 Dr. Brown in his capacity as Executive Chairman of Bermuda Healthcare wrote to the then Premier of Bermuda, the Hon. Michael Dunkley, by letter dated 30 May 2017 complaining inter alia that “ the Government with the assistance of the BHeC [the Council] concocted a methodology that unfairly, grossly and negatively affects the only other provider of such services in Bermuda: my clinics. It is difficult to see any basis for such methodology that does not lead one to conclude that its sole aim and effect was target my clinic: that is also illegal”. The letter was copied to the Leader of the Opposition, the Minister of Health, the Shadow Minister of Health, the Permanent Secretary of Health, the Applicant as CEO of the Council and to Bermuda Healthcare's lawyers. The letter threatened a legal challenge to the validity of the reduction of Bermuda Healthcare's DI fees.

14 The Applicant describes in detail what occurred after this letter was received. The allegations are of what would be, if true, alarming attempts of political pressure being put on and political interference in the functions of the Council by the new Government following the General Election on 18 July 2017.

15 The Applicant recites that she became aware from the Council's lawyers that the Government was “ thinking about offering Brown's businesses $730,000 to settle his claims”; that the Council was asked “ by the Ministry and Attorney General's Chambers to vote on whether the Council should support paying a settlement to Brown's businesses”; which proposal was unanimously rejected by the Council.

16 She recites the fact that Dr. Brown gave a press conference on 17 January 2018 with a Cabinet Minister and other...