Top lawyer questions proposed healthcare coverage reform

  • Serious issues: Mark Diel, of law firm Marshall Diel & Myers (File photograph)

    Serious issues: Mark Diel, of law firm Marshall Diel & Myers (File photograph)

Proposed changes to healthcare coverage could breach the Constitution, a top island lawyer has claimed.

Mark Diel, of law firm Marshall Diel & Myers, said that changes to Bermuda’s healthcare system could raise “serious issues”.

He explained: “I think you can ask any Constitutional lawyer ‘is a contract a piece of property?’ And the answer is — there’s no questions about that — obviously yes.

“Section 1 does give you protection from deprivation of property.

“To simply cancel or dismantle existing contracts is a deprivation of property.

“Assuming the Government wants to do what they have stated they want to do, they have these serious, serious issues to consider — and I’m not sure they have done.”

However, a Government representative said the proposed changes “would not offend Bermuda’s Constitution in any way”.

The Bermuda Constitution says that “no property of any description shall be compulsorily taken possession of, and not interest in or right over property of any description shall be compulsorily acquired” except under specific conditions.

Kim Wilson, the Minister of Health, announced in August that the Bermuda Health Plan 2020 was to replace the Standard Health Benefit coverage for all island residents.

The level of coverage that will be provided and who will administer the scheme have yet to be announced.

Ms Wilson said in August that there would be a four-month consultation period on what the plan should include and costs.

The most recent town hall meeting on the proposed change was held at Penno’s Wharf on October 25.

A “soft launch” of the new plan is expected next autumn.

Mr Diel said the Government was ill-equipped to handle the administrative responsibilities of the Bermuda Health Plan.

He added: “This is not a shot at the Progressive Labour Party. The One Bermuda Alliance would be equally bad at trying to administer a universal healthcare plan.

“You don’t leave something as crucial to people, particularly with an ageing population and all that goes with it, and plonk it in front of a government.”

Mr Diel said that he believed the “inference” was that the new scheme would be Government-run.

He asked: “Are you just going to give it to one healthcare provider? What is going to happen to the others?”

Mr Diel said that he would “be surprised” if companies who provide health coverage to island residents did not raise concerns about the new system.

He added that consumers forced to adopt a different structure might also line up in opposition. Mr Diel said the idea of universal healthcare coverage was “an admirable target to shoot for”.

However, he added: “To sit there and say that everyone has to do this one-size-fits-all — I don’t think is right or fair.”

Mr Diel said that he did not know if potential legal problems with the introduction of the new scheme had been considered by the Government.

He added: “I certainly, in the past, have had numerous experiences where governments have trotted out legislation with absolutely no regard for constitutional implications.”

Mr Diel said that he believed that “the vast majority” of Bermuda residents understood that some type of healthcare reform was needed to tackle high costs and overuse of services.

He added: “I’m raising concern that this seems to be throwing the baby out with the bathwater.”

A spokeswoman for the Ministry of Health said: “The reforms under consultation would not offend Bermuda’s Constitution in any way.”

She added: “After consultation and development of a transition road map, legislative amendments to the Health Insurance Act 1970 would be made to adjust the naming and handling of the current Standard Health Benefit with respect to mandatory health insurance coverage.”

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Published Nov 6, 2019 at 8:00 am (Updated Nov 6, 2019 at 7:59 am)

Top lawyer questions proposed healthcare coverage reform

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