Against a litany of procedural failures, material non-disclosures, misrepresentation and abuse of court process, the Grand Court has ruled in favour of Doctors Express in its case against the government over its sale of medical cannabis vapes for which it had a licence.
Doctors Express had challenged the legality and validity of a Cease and Desist order signed by Chief Medical Officer Dr John Lee, a search warrant issued by a justice of the peace, and a resulting raid on its premises by agents of Customs and Border Control (CBC) and the Royal Cayman Islands Police Service (RCIPS).
No one was ever arrested in connection with the raid.
In his ruling, the Hon. Presiding Judge, Mr Justice Ronin McMillan concluded that the 2019 raid was "unlawful", and that there are compelling grounds to conclude that in exercising his powers the Chief Medical Official (CMO) Dr John Lee "had acted unlawfully and ultra vires" (beyond his authority).
In both of those critical instances, the Court ruled in favour of Doctors Express and noted a number of shortcomings by Dr Lee, the JP and the costumes authorities.
It called the Cease Notice “defective in areas of law and fatally flawed”, and also stated that “it also considered the decision to rely on the law (the CMO) chose was unreliable and unpersuasive.”
The judge also found that regarding the sale of medical cannabis by Doctors Hospital that “there is no restriction on the manner in which these are dispensed - a matter solely for the discretion of the medical; judgement of the prescribing physician.”
Justice McMillan noted that “on or about the same date as the CMO issued the cease and desist notice, the CMO had formed the view that the medicinal cannabinoid vapes issued by Doctors Hospital were not themselves injurious to health."
He also determined that despite the CMO having sent an email to health practitioners ordering that processing and selling of cannabinoids be discontinued, that no rules or regulations existed to underpin that order.
Evidence submitted as evidence showed that the CMO had stated in an email that he was not aware that CBC had relied on his Cease and Desist order in conducting the raid, and had said that he was not aware of the raid until he read about it in the press.
“Given the obvious predicament in which the CMO therefore finds himself, the question inevitably arises as to his credibility,” the judge stated.
The judgement also concluded that “a licencee should not have its licence suspended or revoked indefinitely without some means of knowing why it is so and an opportunity to argue that the decision should be reversed.”
“The CMO considered that he was expected to act even though it was established that he had no genuine medical reason to act at all” the judge stated and raised the question: “In light of this unfortunate situation, did the CMO act for an improper purpose in issuing the cease notice?”
It was also noted that there is no evidence that prior to this initiative the CMO had formed an intention to take any action whatsoever.
“It is also factually correct that only Doctors Express were the only ones dispensing vapourisable medicinal cannabis in the Cayman Islands,” it points out, and also refers to “opacity and ambivalence” in the CMO’s instruction.
“At no point in his affidavit dated 10th February does the CMO indicate that the health issues being raised are not applicable or relevant in the context of the medical cannabinoids which Doctors Express were using.”
“He should have done so fully and truthfully,” the judge added.
“Frankly, the presiding judge stated, “(the court) has genuine difficulty in accepting the reliability and persuasiveness of his evidence” in relation to the timeline of events associated with his decision.
In its conclusion regarding the Cease Notice, Judge McWilliam said “the CMO knew that in relation to the products of Doctor’s Express there was no health risk to issue a Cease notice.”
It also ruled that there was a breach of the widely accepted principles of natural justice and that in issuing the Cease Notice “the CMO acted in fact and in law what would properly be described as an improper purpose.”
The court found that “not only was it functionally targeted at Doctor’s Express but it was also issued against Doctor’s Express on a basis that the CMO himself did not truly believe.
The court also addressed what it regarded as significant flaws in the execution of the search warrant and the raid including “who was authorised and required to enter the premises.”
It expressed a concern that “ultimately these cumulative breaches of formality could undermine the rule of law itself."
“From beginning to end, when the law is applied to the facts this was a complete failure to follow the law,” it noted, adding that upon reviewing the volumes of evidence there were numerous shortcomings including that, “the process of the search was entrusted to an inexperienced customs officer.”
The court found that there “there was no basis for a search of any kind.”
In setting aside (ruling against) both the Cease Order and the search warrant, Justice McMillan ruled that “the court shall consider if damages should be awarded, and the amount in favour of Doctors Express.
He also stated that the court will hear submission as to costs against the government departments responsible at an appropriate time.