Medical lab wins another round in battle for permit

POSTED: 09/3/14 4:25 PM

St. Maarten – The Ministry of Public Health, Social Affairs and Labor has to take a new decision within nine weeks about a license for Health Care Laboratory St. Maarten NV (HCLS) to operate a medical laboratory. The administrative court ruled on Monday morning that the grounds the ministry used to deny the permit amount to circular arguments. The ministry has to pay a penalty of 1,500 guilders for every day it does not comply with the verdict, with a maximum of 150,000 guilders (close to $84,000).

HCLS obtained a business license on April 19, 2012 – more than five years after the company put in a request for it. The lengthy procedure is due to the fact that the former Executive Council refused the license twice, and both times the court ruled that the company’s appeals against these decisions were justified. In the end, the company received its business license and on May 22 of 2012, it applied for a permit to operate a medical laboratory.

Almost a year later, the ministry denied the permit. One of the reasons for this decision was that “the specific requirements for laboratories have not been established yet in a national decree, containing general measures, as is required to be able to assess a request adequately.”

HCLS appealed the decision and on December 23 of last year, the court ruled that this appeal was also justified. The court ordered the ministry to take a new decision within twelve weeks.

Back in 2005, the Executive Council announced research into the need for a second laboratory in St. Maarten. (The first one is SLS, that functioned at the time as an entity of the Netherlands Antilles). The court notes in its ruling that in 2013 there still was no definitive result of that research available. The court furthermore established that requirements in terms of quality or other conditions for issuing the permit HCLS requested are still not in place.

The court ruled that the ministry cannot deny a permit because the review framework for assessing the request has not been established. “The contested decree is therefore based on a motivation that cannot support the rejection.”

The ministry furthermore noted that, considering the recent expansion of St. Maarten Laboratory Services (SLS) there is no need for a second laboratory. Another argument against HCLS was that the company, after it would obtain its permit, “intends to use equipment that requires a permit, while this permit has not yet been requested” and that HCLS did not yet have accreditation for operating a laboratory.

The court notes in its ruling that the ministry’s arguments resemble a circular argument. On the one hand, the ministry states that HCLS did not substantiate its claim that currently lab-tests have to be outsourced to the French side. On the other hand, the ministry reasons “that insofar HCS wants to offer services SLS currently outsources to laboratories abroad, doing these tests locally could save time for patients.”

The court fails to see why SLS outsources tests to labs abroad while there is no need to expand the lab-capacity in St. Maarten. It is also contradictory, the court points out, to claim that there is no need for expansion, while SLS recently renovated and expanded its facilities.

If that argument would stand, the country could meet new needs by expanding SLS and then use this as an argument against HCLS – to claim that there is no need for a second lab.

The court points out in its ruling that the country is the owner of SLS. “The feeling is that this company is not subjected to the same requirements as newcomers.”

 

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