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BHeC ordered to reconsider doctor’s health benefit services application

Dr JJ Soares of Hamilton Medical Centre (File photograph)

A doctor has welcomed an interim ruling that allowed his clinic to continue to provide services under the Standard Health Benefit.

JJ Soares said the Court of Appeal decision meant that an application for SHB status for Hamilton Medical Centre, where he is medical director, would be considered again by the Bermuda Health Council.

Dr Soares added: “In the meantime, my current standard health benefit approval will remain in place and I look forward to demonstrating to the health council that the Hamilton Medical Centre should remain as the first-rate provider of imaging services under the standard health benefit that it has been shown to be.”

In 2019 the Hamilton Medical Centre applied for permission to offer services under the SHB – which would allow FutureCare or HIP coverage for diagnostic services.

But the BHeC refused the application because it said it was concerned that the clinic would “self-refer” patients and provide unnecessary treatments.

Dr Soares challenged the decision, but a BHeC appeal panel upheld the refusal last September.

Dr Soares appealed the decision to the Supreme Court on the ground the BHeC had acted unfairly and unreasonably.

Puisne Judge Larry Mussenden quashed the BHeC decision in April and ordered the approval of Dr Soares’s application.

But the BHeC went to the Court of Appeal in a bid to have Mr Justice Mussenden’s ruling set aside.

Ben Adamson, counsel for BHeC, argued that the organisation’s refusal of the application for SHB status was reasonable and taken to prevent greater costs to patients and taxpayers.

Sir Christopher Clarke, the appeal court president, delivered an interlocutory – or provisional – ruling last Friday.

He said that, among the court’s preliminary conclusions, it was found that the appeal panel decision of September 2020 "cannot stand“ because a ”fair-minded and informed observer“ would conclude that there was a possibility the panel was biased.

Sir Christopher explained that the finding was based on the evidence of Ricky Brathwaite, the BHeC’s chief executive officer, that he took part “at all stages of the proceedings”.

But he said that the appeal judges also found it was not appropriate for Mr Justice Mussenden “to take it upon himself to substitute his own decision for that of the September 2020 appeal panel”.

Sir Christopher said the court would need to make orders or give directions on how the appeal will be dealt with as well as any relief to Dr Soares or the medical centre and the future conduct of their SHB applications.

He added that the judges found the appeal should be adjourned without a fixed resumption date pending consideration by the BHC of a “full-year” application made in June 2020 by Dr Soares and his clinic.

Sir Christopher pointed out that this would not be subject to the “mid-year” application conditions.

The court earlier heard conditions included showing that the services would be “budget neutral” or “technically, a reduction in costs”.

He highlighted that Mr Justice Mussenden’s decision was not yet set aside.

Sir Christopher said: “The tortuous history of the various applications needs to come to an end.

“The best way of proceeding towards that end is for the full-year application to be properly considered as such.

“If that is done and the application is granted, there will, we understand, be no problem arising from the fact that the application relates to the year 2021-22, which is not that far from expiration, since, if it is granted, the BHeC will under its current policy treat Dr Soares/HMC as an incumbent provider whose status will remain that for the 2022-23 year.

“If the application fails, it will have failed after consideration of a full-year application.”

Sir Christopher added: “When, or at any rate not before, the BHeC has reached its decision on the full-year application, the appeal will be restored for hearing and this court will decide exactly what order to make.”

Dr Soares said he was “pleased” that BHeC’s September 2020 appeal panel decision had been set aside.

He added: “I also note that, as a result of the Court of Appeal's ruling, the health council will now be considering my outstanding 2020 application to provide services under the Standard Health Benefit.”

The health council declined to comment on the court’s ruling.

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