The Health Facilities Licensing Bill
January 14, 2007
Partly owing to the contretemps over the Gambling Prevention (Amendment) Bill which seeks to legalize casinos, the Health Facilities Licensing Bill perhaps did not receive quite the same degree of publicity last week which it otherwise might have done. It had been tabled in Parliament on December 21 last year, but given the timing just before Christmas, no one paid too much attention. By the time the bill was scheduled to have its second reading on Thursday, however, some health professionals had in fact given voice to their concerns, and as a consequence it was referred to select committee.
The new act, should it eventually pass, is intended to replace two items of legislation, the more important of which for the present purposes is the Private Hospital Act of 1972. Under the provisions of the bill, all health facilities - which understandably are given a wide definition - must have a licence from the Minister. Such a licence, according to section 7(2), may be subject to the limitations and conditions he considers necessary, including the payment of fees prescribed. Not only would the Minister have the power to issue a licence, but he could also refuse to renew or revoke one if he felt that a given facility was being or would be operated in a manner prejudicial to anyone's health, safety or welfare. In circumstances of the revocation, suspension or refusal to renew a licence, the licensee is entitled to a hearing by a judge provided he delivers to the Minister and the Attorney General within 15 days of being served with the notice, notification in writing requiring a hearing.
After the death of a licensee or where a licence has been surrendered or revoked, the Minister has the power to take control of a health facility and appoint one or more persons to operate it for a period not exceeding one year. During that time the former licensee or his/her estate would not be entitled to payment for any service provided by the facility, although he/she would be entitled to "reasonable compensation for the use of the property…" In the public interest the Minister may not only appoint a supervisor to a health facility, but also specify his duties and powers, and can also appoint inspectors and assessors, the latter of whom would assess the quality and standards of service of a facility.
In a provision regarded as particularly troublesome by some members of the health service fraternity, confidential information relating to a patient or former patient could be communicated in connection with the administration or enforcement of any act or proceedings under any act; with matters relating to professional disciplinary proceedings; and to the person's counsel. It appears to be a section whose consequences have not been fully thought through, and which is in need of further debate. The Minister also would have the power to make regulations in relation to health facilities and their employees.
The 1972 act which this proposed legislation will replace, also gives fairly extensive powers to the Minister, but nothing on this latest scale. The Minister under what obtains now has the power to issue a licence, but it is for the use of a building as a private hospital. The premises, location, facilities and equipment first have to be inspected, and as in the case of the new bill, the Minister has to be satisfied about the fitness of the applicant seeking the licence. Under existing provisions as well he (or she) can refuse to renew a licence or revoke one for reasons which are set forth, although before that is done the matter has to be referred to the Central Board of Health for advice. It might be noted, however, that the Minister is not required to follow that advice.
Under the current law the Minister may appoint medical practitioners as inspectors, and every hospital has to be inspected at least once a year. As things stand too, the Minister can make regulations, among other things, for "the classification, grades and standards of private hospitals." However, the law has a section relating to the deaths of patients which is omitted in the proposed act. The death of a patient has to be reported to the Minister, and within 24 hours the coroner as well, if it occurs within six hours of admission, or 24 if the patient has undergone surgery, childbirth or anaesthesia. Such a death is regarded as unnatural for the purposes of the Coroner's Act. Considering that coroner's inquests are no longer held, this section is in abeyance, and it is hardly surprising that it has not been incorporated into the new bill. As this newspaper has often said before in other contexts, however, coroner's inquests should be revived, and in this particular case they would provide an institutional safeguard for the public outside the framework of the health industry.
Where some other sections of the current law are concerned, such as the requirement that hospitals must keep a patient's records for a minimum of ten years, it may be the intention of the framers of the bill that the Minister should issue regulations governing issues of this kind. In some respects the new bill is vaguer than the act at present in force. The law at the moment makes a distinction between a single licensee and two or more for the purposes of the procedures following a death. If there are two or more partners, there is no state intervention if one of them dies, but where a single licensee dies, the Minister acts only after consultations with whoever holds responsibility for the estate of the deceased. The proposed legislation makes no such distinctions and leaves no room even for consultations, giving the Minister as stated above total powers to take over a health facility following the death of a licensee for the period of a year. It is a section guaranteed to raise a storm of criticism about arbitrary state take-over of private institutions.
While the Private Hospital Act was clearly in need of amendment since medical services have evolved so much over the past thirty odd years since it became law, it must be a source of concern that rather than reducing the powers of the Minister under the current legislation in force, the drafters of the new bill have in fact increased them. In Burnham's Guyana the tendency inevitably was to concentrate power in the hands of the executive, but what is the excuse now? Before revoking a licence, for example, the Minister at present has at least to listen to (although not necessarily act on) the advice of the Central Board of Health; under the bill he doesn't have to listen to anyone - although the licensee can make representations to him. The one improvement in the proposed legislation is that a licensee who has been subject to a revocation, etc, can have recourse to a judge, although the time-frame given for him to officially indicate he will make such an appeal appears rather limited.
In a democracy what one wants is less power in the hands of a political appointee to interfere directly in technical areas, and more power in the hands of autonomous bodies. The Central Board of Health is to all intents and purposes defunct, but what one hoped to see in the bill was some kind of professional authority independent of the Minister with the mandate to license, inspect and monitor all health facilities. That should not be the job of a Minister, even one with technical qualifications himself. No one denies that private health facilities are a very special kind of private property, which must meet certain standards of operation, and which must be subject to ongoing monitoring. The issue really is who should be invested with the power to grant, withhold and revoke licences, who should appoint inspectors/assessors, etc, and to whom these should report.
The good news is that as said above, the bill has been referred to select committee. That gives time for a wider debate on the issues it raises, and in the light of that debate for the committee to make informed recommendations. Hopefully the government will be in listening mode for a change.