Wedderburn v Bermuda Health Council and Ors (Judicial Review)

• Jurisdiction: Bermuda
• Judgment Date: 09 October 2019
• Docket Number: Civil Jurisdiction 2019 No 187
• Date: 09 October 2019
• Court: Supreme Court (Bermuda)

[2019] Bda LR 80

In The Supreme Court of Bermuda

Civil Jurisdiction 2019 No 187

Between:

Tawanna Wedderburn

Applicant

and

Bermuda Health Council

Dr Alicia Stovell-Washington

Minister of Health

Premier of Bermuda

Respondents

Mr E Johnston for the Applicant

Mrs J Snelling for the 1^st and 2^nd Respondents

Mr C Richardson for the 3^rd and 4^th Respondents

The following cases were referred to in the judgment:

R v East Berkshire Health Authority, ex parte Walsh [1985] 1 QB 152

R v Derbyshire County Council ex parte Noble [1990] ICR 809

Finn-Hendrickson v Minister of Education [2008] Bda LR 4

Francis v Municipal Councillors of Kuala Lumpur [1962] 3 All ER 63

McLaughlin v Governor of the Cayman Islands [2007] UKPC 50

Preliminary issue — Termination of employment — Whether termination is amenable to judicial review — Allegations of political pressure

JUDGMENT of Kessaram AJ

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 section 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...