Sunday, January 21, 2018

Problem with the Bain dismissal

 The Prof Brendan Bain issue, where a health professional has been dismissed for giving expert evidence, is an important one for all to consider. It is important from the perspective of judicial matters, the organisation of public opinion and employment practices. It affects us all whether we recognise it or not.

The bare facts are Prof Bain gave expert evidence in a Belizean court in 2012 and The University of the West Indies, acting as administrator for a regional HIV/AIDS programme, saw it as a conflict of interest and his contract was terminated.

An “expert witness” is one who makes their knowledge and experience available to a court to help it understand the issues of a case and thereby reach a sound and just decision. The admission of such experts is under the complete control of the court and the primary duty of the expert is to the court, which has the power to reject it on the basis of an unfavourable view of the impartiality of the witness. Given the fact the court has not yet ruled UWI does appear to be precipitate.

UWI indicated the dismissal was on the grounds of “conflict of interest”—Bain ought not to have given evidence in the light of his current job and the stakeholders it is intended to serve. It cited the unease of significant stakeholders. Apart from the vocal LGBT (lesbian, gay, bisexual and transgender) lobby, the list of these groups has not been disclosed.

Bain’s earlier resignation from a regional body is interpreted as proof he accepts his unsuitability. The lack of transparency around the deliberations clouds our understanding of what affects a crucial health issue in our region.

May it be that the HIV/AIDS issue is unfortunately fused with the buggery issue? Is HIV/AIDS the exclusive province of the LGBT group? It seems to me it is a larger issue which also affects non-LGBT people.

So why is it the voices of other groups are muted? Is it because they do not speak, or is it because there is a reluctanc­e to air their views publicly, or is it fear of offending international donors? As a society, we need to be careful to allow both groups—who wish to have change, as well as those who do not—to speak freely so that a good policy decision could be reached. 

In this case, Bain’s evidence does not support retention of buggery laws neither did it use selective data. He clearly noted there is no correlation between the existence or nonexistence of laws and the spread of the disease. It has not been established his evidence would or has caused affected people to stay away from using the programme in the intervening period. 

Dismissal on grounds of “loss of confidenc­e” ought never to be used as an “in case all else fails” method. The employer has to show a sufficient degree of critical analysis of the information disclosed, the source of the complaint has to be credible and dismissal has to be the appropriate sanction.

There has to be a degree of formality and specificity in the case made before action can be taken against the employee. Otherwise there is the possibility of grave injustice to the employee because of a perceived risk to the reputation of the employer and programme. Is this why PJ Patterson hints at the possible future intervention of the courts? 

Noble Philip

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