The right to health is regarded as an economic, social and cultural right and is viewed as a fundamental human right in international agreements which include the Universal Declaration of Human Rights, International Covenant on Economic, Social and Cultural Rights, and the Convention on the Rights of Persons with Disabilities.
But is basic healthcare afforded to all persons in Trinidad and Tobago? There have been reports of refugees and migrants being refused medical attention at state-run hospital facilities, and being forced to seek assistance at private institutions.
Student Attorney Kimberley Benjamin examined this issue for the for the Hugh Wooding Law School’s Human Rights Law Clinic. The Clinic’s focus for the 2019/2020 academic year was on migrants, asylum-seekers and refugees.
If you are a patient in Trinidad and Tobago, that is, you have presented yourself at a hospital or health facility for diagnosis or treatment for a physical or mental illness, you have certain rights and obligations. Your rights would include all that is owed or ought to be given to you while your obligations would include what you owe or ought to do in relation to your healthcare.
Patients, regardless of their gender, nationality, social class, disabilities or age have an internationally recognised right to healthcare in the five international documents known as conventions or treaties which Trinidad and Tobago has signed, such as the Convention on the Elimination of All Forms of Racial Discrimination (Article 5). However, there is no domestic legislation which specifically provides for patients’ rights or obligations and even the Trinidad and Tobago Constitution is silent on such a right.
Locally, patients’ rights and obligations are primarily set out in the Patients’ Charter of Rights and Obligations. This Charter is a domestic standard or policy of the Ministry of Health for the provision of medical care or healthcare. The Charter means that any person, whether national or non-national, who falls ill in Trinidad and Tobago and goes to any public healthcare facility in any of the five health authority districts, would be entitled to certain rights and expected to adhere to specific obligations.
Patients’ rights include freedom from abuse, the right to respectful treatment, the right to know the identity of healthcare professionals and the right to personal safety, amongst others. The overlap of Charter rights and legal rights is discussed below.
The right to impartial access to treatment means that all persons, including non-nationals, can access treatment at public health facilities in Trinidad and Tobago. Primary healthcare, that is, services for the prevention and treatment of common illnesses, is freely provided to all in Trinidad and Tobago. Importantly, this right extends to antenatal healthcare, malaria and HIV testing and treatment. Secondary or specialized healthcare, such as chemotherapy, is also free for children but is not free for adults.
Patients also have a right to refuse treatment. For example, if you suspect that your healthcare provider is acting below the acceptable standard of medical practice, that is, what is normally expected in the medical profession, you have a right to refuse treatment. In fact, if you are injured as a result of a healthcare professional’s treatment, you may have a legal claim in medical negligence. This is due to the fact that healthcare professionals are held to a high standard of care under the Medical Board of Trinidad and Tobago Code of Ethics in the Practice of Medicine.
To successfully claim medical negligence, you would need to prove that the healthcare professional:
– owed you a duty of care, which would exist once you are a patient;
– breached that duty of care by falling below the normal standard expected of healthcare professionals, for example by failing to properly treat or diagnose your illness; and that
– the breached duty of care caused or resulted in your injury or loss.
A medical negligence claim must be brought within a four-year period from the date of the manifestation of the symptoms according to the Limitation of Certain Actions Act Chap 7:09, s5.
Privacy and confidentiality
The right to privacy under the Charter extends to both the patient and his or her information. You therefore have a right to request that a person of the same sex is present during your medical examination or treatment by a healthcare professional of the opposite sex. You also have a right to have your medical file read only by those directly involved in your treatment or those who have received your prior written consent. The right to privacy is also legally protected by the Trinidad and Tobago Data Protection Act Chap 22:04, s45 which specifically excludes medical information from disclosure unless the patient consents or the court orders such. Any person who discloses your medical information contrary to this Act may be liable to pay a fine or spend up to five years in jail.
Your obligations under the Charter range from supplying full information to healthcare professionals about health-related matters, complying with recommended treatment plans, keeping appointments or notifying of your inability to keep your appointments, among other obligations. You are also required to timely settle any financial obligations. Fulfilling your patient obligations is in your best interests.
In sum, patients’ rights and obligations are primarily policy-driven rather than legislative. Nonetheless, if your rights are infringed or offended by healthcare providers in Trinidad and Tobago, you should complain to The Secretary, Medical Board of Trinidad and Tobago, Eric Williams Medical Sciences Complex, Uriah Butler Highway, Champs Fleurs, Trinidad. All complaints are confidential.
In addition, you may wish to apply for judicial review, that is, to get the court’s permission to make an application for the court to look into the public healthcare facility’s decisions and conduct. To do this, you must bring an action under the Judicial Review Act Chap 7:08 and show that:
– you are a person whose interests have been adversely affected by a decision of a public body or person carrying out a public duty or that your matter is in the interest of the public; and
– one of the grounds stated in the Act such as breach of or omission of a duty, or any other ground even if not specifically stated in the Act, applies to your situation.
It is important to note that if your application for judicial review is successful, you may be entitled to one of the remedies set out in the Act, such as an injunction which would restrain the public healthcare facility from infringing your rights. Your application for judicial review should be promptly made since the court might not entertain it if three (3) months have passed since the date when grounds for the application first arose. Always remember that as a patient, you are entitled to certain rights and have specific obligations, regardless of your immigration status.
This article was re-published with permission from the Human Rights Law Clinic.