in the appeal of the SMMC against the Inspectorate
On Friday November 16th the Court of First Instance ruled in the appeal of the SMMC against the demands the Inspectorate for Public Health had imposed on the hospital on October 12th.
The Inspectorate respects this verdict, however laments very much the grounds on which the judge assessed the case and believes that the verdict is judicially flawed.
On October 12, 2012 the Inspectorate imposed 13 measures against SMMC to ensure that good basic quality of care is rendered in SMMC and as such within the only hospital on St. Maarten. These measures were imposed after the Inspectorate established, following an extensive investigation, that the care rendered is presently sub-optimal/sub-standard. This was also the conclusion drawn by the Inspectorate of the now defunct Netherlands Antilles in its reports in the years 2007 and 2008. It is therefore not now that sub-standard care is being rendered in SMMC; that has been going on for several years. SMMC is or should be aware hereof and the Inspectorate regretfully established in its latest report, that matters are not improving, on the contrary.
It is well known that in the course of especially the last years various incidents have occurred in SMMC, with often dramatic consequences. It can in practice not be established that the sub-standard basic care that is being rendered within SMMC is at the root or forms the –main- cause of these incidents. On the other hand, it can also not be excluded that this sub-standard basic care has caused/influenced some of these incidents. It is therefore of cardinal importance that SMMC renders good basic care, as is required by Law and as can and should be expected by the St. Maarten Citizens.
Instead of adjudging whether or not the measures imposed by the Inspectorate result in disproportional advantage to SMMC as per article 85 LAR, the Court of First Instance considered if the measures imposed by the Inspectorate are reasonable. This is an entirely different examination or review, and one that unavoidably puts the Court in First Instance in the seat of the Inspectorate, a position wherein it should not want to find itself in, for the simple reason that the Court of First Instance is not equipped or capable to determine whether or not good basic quality of care is rendered and what does and/or does not constitute serious violations that inhibit good basic quality of care. It is not without reason that the legislator has granted a discretionary right to the Inspectorate to make assertions with regards to quality of care and has determined that measures imposed, in this case by the Inspectorate, can only be suspended in case they are disproportionally disadvantageous to a party. The disputed verdict does not contain one (1) consideration pertaining to possible disproportional disadvantage. The Court of First Instance in essence ruled that the Inspectorate did not give SMMC enough time to respond to the draft report made by the Inspectorate and that the Inspectorate did not give SMMC the opportunity, although the SxM law does not require that, to be heard before deciding to impose the 13 measures. No consideration has been made pertaining how this, even if assumed that it is correct, causes SMMC to suffer disproportional disadvantage as a result of the imposed measures. One of the most remarkable aspects of the disputed verdict is that the Court of First Instance doesn’t take a decision as to whether or not SMMC violated the law, as established by the Inspection. Without determining if the law has been violated by SMMC, the Court of First Instance however concludes that the reasons given by the Inspectorate to impose measures, are not severe enough. The Inspectorate begs to differ and wonders what definition, if any, the Court of First Instance applied for the qualification of "severe violation", in order to determine that the violations established by the Inspectorate(a subject that the Court of First Instance as it stated deliberately did not address in its verdict) are not severe enough to justify imposing measures.
The Court of First Instance not only applied incorrect judicial criteria in its decision of November 16th, 2012, but in deciding to within the limited scope of this injunction procedure as per the Law, also evaluate whether or not the infringements established by the Inspectorate should or should not be considered serious, it violated the discretionary rights granted by the legislator to the Inspectorate. The Inspectorate is of the opinion that it is especially fit and suited with professionals in the medical field, with the capacity to determine, as designated by the legislator, whether or not good basic quality of care is being rendered.
The quality of care and wellbeing of the St. Maarten citizens is what is at stake. The suspension by the Court of First Instance of the measures imposed by the Inspectorate in essence makes it impossible and in any case very challenging for the Inspectorate to fulfill its legal obligation to ensure that proper quality of care if rendered, at least expeditiously, and in general for the Inspectorate to exercise its legal authority. The Inspectorate fears that the various established infringements and the sub-standard care that is now being rendered with SMMC will continue.
By law the decision of the Court of First Instance cannot be appealed. The Inspectorate is analyzing its recourses in order to still be able to safeguard that basic quality of care is available on St. Maarten for all citizens.