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Minister Jeanne Atherden Ministerial Brief: Medical Practitioners Amendment Act 2016

Thursday, February 11, 2016

OVERVIEW OF THE BILL (2nd Reading)

Mr.  Speaker, I am pleased to stand before the House today for the second reading of the Medical Practitioners Amendment Bill (the Amendment), for the consideration of this Honourable House.

Mr.  Speaker, the Medical Practitioners Act 1950 (hereafter the Act) regulates medical practitioners through:

  • Establishing statutory bodies to regulate physicians – the Council and its Committee;
  • Establishing a registration process: Establishment of initial registration criteria, and renewal of registration every two (2) years being tied to continued professional development;
  • Establishing a Code of Conduct – to outline what is expected professional conduct; and,
  • Establishing a complaints-handling process to address practitioners who breach the Code.

The ultimate purpose of the Act is to protect the health and well being of the public by ensuring access to quality care in the area of medical practice.

However, as many in the healthcare community are aware, and as noted in the 2015 Throne Speech, the Medical Practitioners Act is outdated.  It requires substantial amendment to ensure it is relevant to the current practice of medicine in Bermuda, and that it upholds best practices set both locally and internationally. 

Mr Speaker, The Ministry, with physician community representatives, has identified several areas for improvement.  The Medical Practitioners Amendment Bill 2015 takes four approaches, namely to strengthen, to regularize, to harmonize and to provide equity to three key policy objectives being addressed. 

The three policy objectives are:

  1. To strengthen the GOVERNANCE of physician practice by the COUNCIL.
  2. To improve the quality of physician practice by strengthening, regularizing, harmonizing and ensuring equity of the REGISTRATION requirements.
  3. To strengthen the COMPLAINTS-HANDLING procedures to ensure patient safety.

Mr Speaker, most of the amendments are standard provisions found in our other eight (8) healthcare professions Acts. However, three (3) of the amendments establish precedents for Bermuda’s healthcare professions statues, but these align with the international regulation of healthcare professionals.  Most of the amendments improve the functioning of the Council, and a few affect practitioners. I will now go through each policy objective.

The FIRST policy objective, Mr. Speaker, is to strengthen the governance of physician practice by the Council. It has three key components and the initiatives under these include:

Firstly, Council governance is improved by inserting new provisions or amending existing ones; those of note include:

  • Adding a conflict of interest provision so that members must declare if they are personally acquainted with any business being attended.  This is important in our small community to ensure that there is no bias in the decision-making process.
  • Changing the quorum from being less than 50%, to being more than 50% of the members.  This will ensure that the quorum is in fact, representative of the Council.
  • Inserting a term of office provision where previously there was none.  Now a member may serve for two consecutive terms of three years, and may only be reappointed after a break.  This balances the need to change members with the need to ensure continuity of knowledge.
  • Adding procedure for replacing members where a member’s service is ended early for various reasons. 

Second, Council now has a duty to establish a Code of Conduct.  The Code can be used for determining whether a practitioner has breached conduct which constitutes grounds for disciplinary action.  In addition, the Code of Conduct allows for the establishment of ethical conduct, Standards of practice and Scopes of practice. 

Third, the Council is being de-corporatized to allow access to Chamber’s counsel.  The reasons for it being a body corporate, including, for example, owning property, are not relevant to the Council.  However, access to Chamber’s counsel is important.  In half of our eight (8) healthcare professions Acts, the statutory bodies are corporate bodies, and in half of the Acts they are not.  The Ministry intends to harmonize our healthcare professions statutory bodies and make them all non-corporate bodies.  As a consequence of de-corporatizing the Council, a provision that protects members from personal liability is being added.

The SECOND policy objective, Mr Speaker, is to improve the quality of physician practice by strengthening, regularizing, harmonizing and ensuring equity in the registration requirements.

Registration provides the legal right to practice.  Currently initial registration is tied to meeting qualification, conduct and experience requirements. And re-registration, being every two (2) years, is tied to continuing to meet those requirements, and meeting continued professional development requirements. This ensures physicians are maintaining and updating their knowledge and skills.  The amendment improves three key components, including:

Firstly, the amendment inserts the requirement to be actively practicing. Minimum practice hours contribute to ensuring that physicians are maintaining and updating their knowledge and skills. This ensures best practice which ultimately protects the public.  Maintenance of practice is a best practice in other jurisdictions.  In Bermuda this requirement was applied to the Acts that regulate Psychologists in 1997, that regulate Nurses in 2008, and, that regulate Pharmacists in 2013.  Mr Speaker, please be advised that this requirement to be actively practising is in fact implicit in the Act - under the existing power to suspend practitioners that have not practiced in three (3) years.  The amendment thus brings the assumption of practicing from the background i.e. being tied to suspension; and brings it to the foreground by tying it to registration – which is best practice. 

Second Mr. Speaker, because registration confers the legal right to practice, the amendment will make it a requirement of registration that practitioners must have malpractice insurance (AKA professional indemnity insurance). This will ensure that only practitioners with such coverage can practice. Medical indemnity insurance plays a vital role within the health system by working to protect both doctors and patients in the event of an adverse incident arising from medical care. While Bermuda’s health system is generally very safe, things occasionally go wrong. This amendment ensures patients will be able to seek redress in the event of a medical error or misconduct by a medical practitioner Whilst this amendment is a precedent for our healthcare professions Acts, in reality it regularizes the status quo, in that it has been required of physicians for several years (since about 2007).  It is also a standard requirement in other jurisdictions, including the United Kingdom where it is required for most types of registered health professions and was given statutory footing for physicians effective August 1st 2015. 

Third, the amendment removes disparities in registration requirements arising from place of employment.  Currently registration fees, and the registration exam requirement, vary depending on the practitioner’s place of employment:  That is, fees are waived for persons employed at the hospital and in Government, and the exam is waived for persons employed in Government.  That these requirements are waived by place of employment, is unfair. Moreover, the exam waiver implies a lower standard is acceptable for Government practice.  Mr Speaker, I wish to assure the public that the standard in the public clinics is no different to that in the private sector.  The removal of the fee and the exam waiver by place of employment provides equity of registration requirements and formally establishes a single standard across Bermuda. 

The THIRD policy objective, Mr Speaker, is to strengthen the complaints-handling procedures. 

This has several initiatives: Those of note pertaining to GENERAL aspects include:

Firstly, the duty to establish a Code of Conduct, as mentioned above, which may include ethical conduct, standards of practice and scopes of practice allows the standards expected of registered practitioners to be established.  And, it provides grounds, when persons do not meet the Code, for disciplinary action. 

Second, the definition of misconduct is being amended to include not discharging a duty (or requirement) of a medical practitioner prescribed under any other statue.  The amendment allows such breaches to be addressed in the complaints-handling process, and allows the Council to require the practitioner meet the duty or be sanctioned.  For example, physicians are required to report communicable diseases under the Public Health Act 1949.  Most practitioners meet these requirements, but in some cases ensuring compliance is problematic.  The amendment will ensure compliance with the law.

Third, the amendment removes disparities arising from place of employment in the mandatory reporting of impaired practitioners.  Currently the Act requires mandatory reporting of practitioners impaired by drugs or alcohol.  However, for persons employed at the hospital, the matter is only referred to the hospital Chief of Staff. Whereas, for persons employed anywhere else, the matter is referred to the country’s Chief Medical Officer – and this latter process is likely to impact the practitioner’s registration status.  This difference in disciplinary outcome is inequitable.  The amendment aligns the reporting process, by requiring that the hospital Chief of Staff must inform the Chief Medical Officer, and in all cases, regardless of complaint-origin by place of employment, the Chief Medical Officer will inform the Conduct Committee. Thus, the amendment, by removing the disparities by place of employment, provides equity and strengthens the handling of misconduct.

Mr. Speaker, amendments of note pertaining to the INVESTIGATION aspects include the following:

The amendment will ensure a just and fair process for handling complaints in the investigation, enquiry and appeal phases.  In 2005, the Supreme Court ruling, Fay vs. the Dental Board [No 2005:100], found constitutional concerns regarding disciplinary and appeals processes in the Dental Practitioners Act that also applied to other healthcare professions legislation.  Mr. Speaker, the Act was identified as a piece of legislation that also required these changes.  Specifically a clear separation of adjudication from investigation was deemed necessary.  

In 2006 the Act was amended to establish a separate body, the Conduct Committee, to undertake investigation separate from the Council which adjudicates.  Unfortunately, the membership of that Committee was constituted from members of the Council, and thus the separation of investigation and adjudication was not technically achieved.  This amendment will ensure that members on the adjudicating body (the Council) cannot be on the investigation body (the Committee).

Furthermore, unique to the Medical Practitioners Act the Chief Medical Officer, ex officio to the Council, undertakes a preliminary investigation. This confers the power to stop a complaint being forwarded to the Committee for investigation on the grounds that is it vexatious, frivolous or arising from a misunderstanding.  Mr. Speaker, it is not good process for one person to make decisions regarding the outcome of complaints. Furthermore it is a waste of resources to have two entities investigate matters.  Accordingly, the Chief Medical Officer has been removed from the investigation process and all complaints will go the Committee to investigate.  None-the-less, the Chief Medical Officer, as ex officio to the Council, will continue to assist the Committee in the administrative aspects of complaint handling.  

In addition, Mr Speaker, the Supreme Court ruling stipulated that all appeals should be directed to the Supreme Court and not the Executive.  The amendment changes appeals concerning registration. These will now be to the Supreme Court instead of Cabinet.  Furthermore, the time allowed to appeal has been increased from 7 days to 28 days.  This is considered fairer, and it aligns with that outlined in the Interpretation Act. 

Mr Speaker, the amendment adds a legal precedent that allows a complaint-handling process to proceed through the investigation and adjudication even if withdrawn – but only where there is just cause. This effectively means that the Council, like the public prosecutor in criminal proceedings, represents the public interest, and not the complainant per se. This provision establishes a precedent in our healthcare professions legislation, but aligns with international regulation of healthcare professions – for example in the United Kingdom.

Other small, but important amendments, include those that improve the procedures of the Committee. This includes: establishing a quorum and inserting a Conflict of Interest provision. 

Mr Speaker, amendments of note pertaining to the ADJUDICATION aspects which strengthen the enquiry procedure, include the following:

Currently the effectiveness of the Council to address complaints has been challenged by the inability to get access to relevant documents and witnesses.  The amendment gives the Enquiry by the Council the new powers to require information, documentation from any person, and the power to summon any person – if it appears they have information relevant to the case. 

The amendment gives the Council Enquiry the power to impose an immediate suspension of practice on a practitioner, if there is significant and demonstrable risk to the public.  That is, they need not wait until the investigation and adjudication process is completed.   This is a significant power that will ensure patient safety where needed. This power establishes a precedent among our healthcare professions Acts, but is common in other jurisdictions, e.g. the United Kingdom.

The amendment inserts the power to establish more procedure to be followed on an investigation and on an Enquiry, by inserting the power to prescribe Regulations concerning these.  This will allow proceedings to be updated in a timely fashion should the need arise.

In conclusion Mr.  Speaker, this is significant amendment before the House today.  Within it are the necessary changes to improve, strengthen, regularize and provide equity in three policy areas: the governance of the physician sector by the Council, the registration standards for all physicians, and the complaints-handling procedures. All of these amendments serve to improve healthcare standards and to protect patient safety.

I would like to thank all the stakeholders involved in the development of this Amendment especially the local physician community though their Council and Association; the United Kingdom Law Commission and the United Kingdom Health professions Councils, and the Cayman Islands healthcare professions’ Registrar.  I look forward to our continued work with the physician community to improve our healthcare professionals’ legislation for the benefit of all Bermuda.

Mr.  Speaker, I look forward to the support of all of my honourable colleagues as we debate this Bill.  

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