Email ‘proves’ conspiracy in Doctors Express case

| 16/11/2020
Cayman News Service
Chief Medical Officer Dr John Lee

(CNS): An eleventh hour disclosure of a damning email written by Chief Medical Officer Dr John Lee that emerged Friday in a judicial review regarding a raid at Doctors Express by customs last year left little doubt that there was a conspiracy to curb the facility’s ability to dispense cannabinoids. Attorney James Austin-Smith said the email “proved” Dr Lee had no real medical concerns about the specific vape product the clinic was prescribing but conspired with customs to stop the supply of legal medical cannabis.

The email read out in court conflicted directly with all of the sworn evidence the CMO has previously given in the case. But it tied in with evidence that there was also a desire by the customs director, Charles Clifford, to stop the dispensing of medical ganja, despite the legalization of its prescription by legislators in 2017.

The email was part of a chain, most of which had been disclosed over the course of the hearing. But just one part, a particularly incriminating part for the crown’s defence of the case, was not disclosed until it appeared on the morning of the last day of the judicial review.

The correspondence shows that in the wake of pressure from customs over an advert for vaporized medical cannabis, Dr Lee had written to Dr Michelle Mon Desir, the chair of the Health Practice Commission, and made it clear that this provided an opportunity to “rein in” the prescription of ganja-related medicines when the top government doctor admitted it was safe.

Sending her a draft of the proposed cease and desist (or stop) notice, the government’s chief doctor outlined the underlying sentiments for wanting to stop the prescription of medical ganja.

“I think it is highly likely that vaporising cannabinoides is not more injurious to health than smoking marijuana. The deaths from vaping seem more related to an additive… which is found in cheaper vapes and not in the medical cannabinoid vapes that Doctors Express are using,” the CMO wrote.

He went on to state that, with the publicity over vapes and the potential for related deaths when mixed with the oily vitamin E additive, the Doctors Express advert gave the authorities here a chance to clamp down on medical cannabis, even though the research made it clear cannabis is not a dangerous drug.

“The juxtaposition of the worldwide focus on vaping deaths at the same time as the Doctors Express flagrant use of blanket advertising was unfortunate for Doctors Express and gives us a chance to rein in this widespread use of cannabinoids in the face of guidance to the contrary,” Dr Lee wrote in his email.

This contradicts Dr Lee’s position in written evidence and sworn statements that the only reason why he had issued the cease and desist notice was because dispensing medical cannabinoids via vaping posed a real danger to patients and a serious public health threat.

Austin-Smith submitted to the court that, when coupled with other evidence, it was perfectly clear that customs and the chief medical officer had conspired to try to change policy and curb the ability of Doctors Express to prescribe a legal medicine.

Along with the correspondence from customs and the orders given by management to the customs officer who, in turn, misled the justice of the peace to secure the unnecessary and defective warrant, James Austin-Smith said the email completely undermined the crown’s defence of the complaints set out in the judicial review.

Austin-Smith was enraged by the late disclosure of the critical and damning piece of evidence that completely supported the entire thrust of his client’s complaint that the crown has denied ever since the raid took place. He said that it demonstrated that there was a malicious intent by all those involved to deliberately target the medical facility and try to stop them doing what was perfectly lawful by using the power of the state.

The lawyer said it was an alarming abuse of process that amounted to a “stitch-up, a muck-up and a cover-up”, as he urged the judge to present the evidence in the case to the director of public prosecutions.

Austin-Smith said he had never seen such a terrible and extensive abuse of process. He added that the parties involved had also perjured themselves and misused their public office in the pursuit of an unlawful aim to stop a legal medical centre from treating their patients with lawful medicines.

Pointing to the human rights issues, Austin-Smith said the entire case had “very serious implications for the Cayman Islands”, and there could be “no case with greater gravity than this one right now”. The lawyer said that the duty of the court was not just to find in favour of his client, given all the evidence, but for this to be referred for a criminal investigation of those involved as well.

Without indicating his final position on the case, Justice Robin McMillan, throughout the proceedings Friday, gave the crown’s attorney numerous opportunities to “think seriously” about his case.

But despite clear indications from the judge that crown counsel Nigel Gayle had some very challenging issues to address, the representative from the Attorney General’s Chambers had little to offer by way of explanation for the damning emails or why the one key message had been missing from the chain.

He also made no effort to review the defence by government of the raid on the emergency medical centre.

Gayle made it clear that the crown was sticking by its case and said that all of the evidence was open to interpretation. He argued that the CMO’s email did not undermine the idea that the cease notice was still as a result of the doctor’s concerns that vaping cannabis posed a public health threat and that they were not targetting Doctors Express.

As the case wrapped up Friday, the judge pointed out that this was a very serious and troubling case and that he would need time to consider all of the issues and warned that he was unlikely to give a ruling for some time.

In the first instance Doctors Express is seeking a ruling to declare the actions of the authorities unlawful and to quash both the warrant and the cease and desist notice that led to the seizure of their goods. Although the notice stopping any doctor from dispensing cannabis via vapes was withdrawn quietly shortly after the raid, it took Doctors Express more than a year to get back what was by that time their very badly damaged stock.

Should the doctors be successful in their aim to have the court find the warrant and notice were an abuse of process in addition to seeking compensation for the damaged goods and their legal costs, they will then be seeking reputational damages.

The case has wide implications not just for the surgery involved but the public because the case demonstrates there could have been a very serious misuse of public office to change lawful policy and target lawful behaviour because some people in authority decided it should not be lawful.

The raid resulted in cancer patients and many others with serious health conditions being deprived of a medicine that they had been using to help alleviate the worst symptoms of their conditions as well as addressing pain management. The raid involved around 15 armed police and customs officers and took place at 4pm in the afternoon when patients were being treated and waiting to be treated for many different personal health concerns.

The bust was widely publicized but because there was no indication at the time that this entire episode was, as Austin-Smith described it, a “stitch-up”, it painted a distorted picture of the clinic. Because some in authority deciding that the dispensing of medical cannabis “was widespread”, Doctors Express remain concerned that they were wrongly targetted, abused by the system and their reputation sullied.


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