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Government backs Bill that doctors association calls to be blocked

Kim Wilson, the Minister of Health (File photograph by Akil Simmons)

The Government has defended its Bermuda Health Council Amendment Act amid calls from doctors to have it blocked in the Senate.

The Bermuda Medical Doctors Association issued recommendations this week saying that the new Act, passed in Parliament this month and due to be debated today in the Senate, as it stands has the potential to compromise personal privacy, could involve arbitrary data sweeps by the Bermuda Health Council and carries “excessive” penalties that could result in the loss of a licence to practise.

The BMDA, which represents more than 300 local physicians, has submitted its proposed revisions and legal analysis carried out by Carey Olsen to David Burt, the Premier, among others.

A spokesman from the association told The Royal Gazette: “The Bill should not pass in the Senate until these changes are made.”

The legislation approved by MPs this month allows the health minister to direct which data should be collected from healthcare providers.

The BMDA said this could lead to random data sweeps with insufficient ministerial guidance, leading to unintended consequences for healthcare.

A spokeswoman for the Ministry of Health said: “The council’s data collection is to be directed by the minister under section 7 of the Bermuda Health Council Act 2004 to ensure data collection is targeted and authorised, and to avoid a ‘data sweep'.

“Data collection requests will be accompanied by clear ministerial directions, ensuring they are reasonable, proportionate and necessary. The Bill is drafted so as to specifically avoid ‘data sweeps’.”

The BMDA stated that the new Act does not adequately safeguard personal privacy and commercially-sensitive information, and recommended more protections to be put in place.

The ministry spokeswoman said the amendment act includes strong measures to ensure the anonymity of all disclosed information and safeguard sensitive data.

She said: “Specifically, all data collected under the amendment act will be anonymised to prevent unauthorised access. Only authorised personnel, bound by strict confidentiality agreements, will have access to the data.

“Furthermore, the requirements of the BHCAA are fully aligned with the provisions of the Personal Information Protection Act.

“We are committed to adhering to all PipaA provisions, which outline our privacy and data protection accountability. According to the Pipa legislation, ‘personal information’ refers to any data concerning an identified or identifiable individual.”

She said the Act mandates that data be structured in a way that anonymises patient names and potentially other identifying information.

But the BMDA has recommended that commercially-sensitive information be subject to exemptions, that all identifying information required to be submitted to the council under the new law be required in anonymised form and that the council should not target requests to specific health and insurance providers unless they consent.

The ministry said the penalties outlined in the recently enacted Bill are “consistent” with those already established in the existing Act.

The primary legislation, the Bermuda Health Council Act 2004, does impose a fine of $20,000 and/or one year imprisonment for a more serious offence such as operating without a license.

The BMDA agreed that unregulated health services can result in serious injury or death, and should result in serious consequences but questioned the fines for failure to disclose information.

Carey Olsen said in its analysis: “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 license to practice.

“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.

“In such circumstances, the threat of imprisonment is more appropriately used to punish wilful failure by the accused to provide the required information. The accused is therefore able to rely on the defence of ‘reasonable excuse’.”

The ministry spokeswoman added: “In all cases brought before the magistrates, it falls within their discretion to decide the penalty whether it be a fine or term of imprisonment, based on the circumstances and severity of the specific case.

“The magistrate exercises their discretion to deliver a proportional sentence that aligns with the gravity of the offence.

“For those who face challenges meeting this requirement, the Ministry of Health and Bermuda Health Council will assist health businesses in collecting and submitting the required data.”

The BMDA claimed this week that the organisation was not properly consulted over the legislation.

The ministry spokeswoman said: “The Ministry of Health and the Bermuda Health Council are committed to ongoing collaboration with the BMDA and all other stakeholders.

“We aim to enhance healthcare delivery while safeguarding the rights and interests of patients and providers.”

She said there were two consultation sessions held last October and November, saying “520 health businesses were invited to participate in each”.

She also referred to a statement released by the Government issued earlier this month that said: “Consultation with health businesses was a crucial part of the legislative process as the Government seeks to operationalise the licensing of health businesses.

“Participants included allied health, community health organisations, dentistry, diagnostic services, government health services, nursing, pharmacies, primary care and specialist care providers.”

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Published May 29, 2024 at 7:55 am (Updated May 29, 2024 at 7:54 am)

Government backs Bill that doctors association calls to be blocked

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