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Jail risk removed from planned Health Council Act

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Kim Wilson, the Minister of Health, provides an update on the Bermuda Health Council Amendment Act 2024 (Photograph by Akil Simmons)

Health service providers who fail to respond to information requests will not be at risk of imprisonment under proposed legislation, Kim Wilson said yesterday as she announced a change to the planned law.

The Bermuda Health Council Amendment Act 2024 earlier stipulated that failure to provide statutorily required information designed to reduce healthcare costs could result in a jail sentence.

MPs voted 18-5 to pass the Bill in May, when a proposed amendment from the One Bermuda Alliance — to remove the potential prison sentence for failure to comply — was defeated.

Scott Pearman, the Shadow Minister of Legal Affairs, said yesterday that the Opposition welcomed the Government changing the legislation.

However, Mr Pearman noted that the 18 government MPs in favour included David Burt, the Premier, and nine members of Cabinet.

He reiterated that “criminal sanctions, such as imprisonment, exist in order to punish criminal acts”.

The Opposition has complained that the “extreme sanction” had appeared in several new laws.

Mr Pearman added: “It is hard to understand how this Bill got as far along as it did.”

Ms Wilson, the health minister, said that an amendment expected to be laid in the Upper House would remove the penalty of imprisonment.

A fine of up to $20,000 for the same failure to comply is to be kept in place

Mr Pearman said the Opposition had not yet seen an amended Bill ahead of the Senate meeting on Wednesday.

He said the Opposition hoped other concerns on data protection and patient confidentially had been heeded. “We shall see,” he added.

Members of the Bermuda Medical Doctors Association raised concerns last month about the provision that could essentially end a doctor’s right to practise.

The BMDA wrote to the ministry to express its gratitude for removing the imprisonment clause, although it noted other concerns.

Ms Wilson said yesterday morning: “As we continue towards universal health coverage, accurate data to enable evidence-based and informed decision-making is essential.

“One of the key weaknesses of our healthcare system in Bermuda is that we do not have the necessary data to inform the decisions that are needed to make healthcare more affordable in Bermuda.

“While many agree of the importance of data collection, the inclusion of a penalty of imprisonment for noncompliance provoked concern and reservations from valued stakeholders in our physician community.

“We have actively listened to the concerns that they have raised and the suggestions raised since the passing of the Bill in the House of Assembly from all sides and in the spirit of collaboration, the Government will amend the Bill in the Senate following representations made by legislators, members of the public and some of our healthcare providers.

“We believe that the proposed amendment reflects our dedication to inclusive and responsive governance.

“By incorporating feedback from our colleagues we look forward to the passage of this Bill in the Senate as a key measure to advance and progress our goal towards universal healthcare.”

She explained: “The proposed amendment to be laid in the Senate, which will remove the penalty of imprisonment, will be incorporated to ensure that Bermuda can achieve its intended goals — namely the collection of anonymised data in a manner that is focused and authorised, all to improve health outcomes and enhance financial sustainability and affordability.”

The BMDA enlisted Carey Olsen for a legal analysis of the original Bill.

Carey Olsen said: “Failing to respond to an information request from the council should not result in a conviction for health service providers.

“That is highlighted by the fact that one conviction, even if just for failing to provide information to the council, can result in a doctor losing their licence to practise.

“Even where the failure to provide statutorily required information does potentially attract imprisonment, an unqualified $20,000 fine and/or up to one year imprisonment appears excessive.”

Ms Wilson confirmed that the financial penalty would remain in place.

The minister said: “The penalty with respect to the fine is consistent with provisions that already exist in the legislation.

“There was more of a dissatisfaction as it relates to the terms of imprisonment.”

The BMDA also raised concerns about safeguarding personal privacy and commercially sensitive information, as well as the potential for arbitrary data sweeps.

Ms Wilson said: “As we have indicated previously, in addition to the fact there will be no personal patient information requested, the health council is compliant with Pipa [Personal Information Protection Act].”

Asked if there were concerns about potential data breaches, in light of the cyberattack last September, the minister said: “Clearly that is always a concern and the health council has certain firewalls and technical equipment and whatever is necessary to minimise that.

“Again, no personal patient data will be asked for, it is all high-level population data.”

The BMDA said to the ministry in its letter, which was seen by The Royal Gazette: “We believe these collaborative and protective measures will go a long way in rebuilding trust between healthcare providers and the Government.

“They will ensure a fair and efficient system for RVU [relative value units] data collection and calculation in Bermuda, benefiting both healthcare providers and patients.

“We appreciate your willingness to engage with us on these important issues and your openness to considering our proposed amendments.

“We look forward to continuing our collaboration with the Ministry of Health to ensure the successful implementation of these amendments.”

On concerns about commercially sensitive data, the BMDA said: “We propose adopting a process similar to that used in the USA, where such data is collected via professional bodies.

“This approach … will protect sensitive information while still providing the necessary data for calculating Bermuda RVUs.”

The association also asked for consideration of “adjusting penalties to more reasonable levels, with a focus on civil fines rather than criminal penalties”.

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Published June 11, 2024 at 7:58 am (Updated June 11, 2024 at 7:58 am)

Jail risk removed from planned Health Council Act

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