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The new health landscape
Written by Paul Mulholland Monday, 03 November 2008 15:00
The Government’s legislative programme for the current Dáil session contains many new health-related Bills which are expected to be published over the next year.
According to medico-legal experts, a number of the upcoming Bills promise to change the health landscape in many important areas. “This seems like the classic example – waiting a long time for a bus and then they all come along at once,” Dublin-based GP and barrister, Dr Simon Mills, told IMN.
“There seems to be a large volume of important reforming legislation. While I would not expect there to be many surprises in the majority of the proposed Bills, it is going to offer some major reforms, particularly regarding mental capacity and human tissue.”
Former civil servant at the Department of Health and Managing Director with Prospectus Consultants, Mr Vincent Barton, agrees that the legislative agenda is broad and adds that it touches upon some neglected topics.
“It does represent a balance across many areas of health activity,” Mr Barton told IMN. “It is good to see areas that often don’t get the attention of others, like mental health and human tissue legislation, are part of the programme.”
One of the main pieces of forthcoming legislation is the Nursing Homes Support Scheme Bill 2008, otherwise known as A Fair Deal, which, along with the Adoption Bill and the Child Bill, is expected to go through the Oireachtas shortly.
The Bill, which aims to standardise financial arrangements for long-term care and make nursing homes more affordable, has already been published, having been delayed for more than a year.
While the publication of the Bill has been welcomed, some groups, including Age Action Ireland, have expressed reservations about the legislation, which they say will amount to a selective inheritance tax on the elderly.
Mr Barton said, however, that the Fair Deal scheme offers an important “building block” in the provision for long-stay residential care for older people and will help iron out variations in costs across the country.
The issue of mental capacity, which, according to Minister Harney, was responsible for delaying the introduction of the scheme, will also be raised in another Bill that is currently being drafted.
The Heads of a new Mental Capacity Bill have been agreed by the Department of Justice and the text is being prepared.
The Bill is based on recommendations from a report from the Law Reform Commission and will contain a number of guiding principles to assist both the court and persons making a decision on behalf of an adult who lacks capacity. The Bill will establish that there is a presumption of capacity and that no intervention in the person’s decision-making will take place unless it is necessary, having regard to the individual needs and circumstances of the person.
“It is very important to get this legislation right,” expert in mental health law, Dr Mary Keys, a lecturer in law from NUI Galway told IMN. “It applies a functional approach to capacity and applies a number of principles for people’s decisions. However, a disappointment with the Bill is the proposal that courts make the decision on capacity. This is a retrograde step that isn’t in the best interests of vulnerable people who may be intimidated in a court setting,” she said.
The Human Tissues Bill is also at a similar stage. Dr Mills expects the Bill to meet the key recommendations of the Madden Report on Post Mortem Practice and Procedures, that no post-mortem examination should be carried out and no tissue retained for any purpose without authorisation.
Mr Barton says that the bill will cover a large range of issues including transplantation, retrieval, collection and the controversial issue of consent. “These are very significant issues that need to be attended to by comprehensive legislation and cannot be done on a piecemeal basis,” he maintained. Also in the pipeline is the Eligibility for Health and Personal Social Services Bill.
According to the Department of Health, the aim is to produce a clear set of statutory provisions “that ensure equity and transparency and to bring the system up to date with developments in service delivery and technology that have occurred since the Health Act, 1970”.
The legislation will define specific health and personal social services more clearly; set out who should be eligible for what services, as well as criteria for eligibility; establish when and in what circumstances charges may be made; and provide for an appeals framework, the Department said.
Provisions for the changes in eligibility for medical cards that have arisen as a result of the abolition of the automatic entitlement for the over-70s card will have to be contained in new legislation. It will be necessary to provide legislation for both the repeal of Section 1 of the Health (Miscellaneous Provisions ) Act, 2001, and also the withdrawal of eligibility from people who currently have medical cards under the 2001 Act, whose income is above the threshold announced by the Government.
Also, the Department of Health will bring forward legislation which will exempt all persons aged 70 years and over on or after the January 1, 2009 from paying health contributions. Like many other pieces of legislation being dealt with at the moment, the Heads of the Bill have yet to be agreed by Government.
Another major piece of forthcoming legislation is the Health Information Bill, which will provide a legislative framework for the governance of information in the health sector. The Department of Health received approximately 70 submissions on the discussion document on this Bill.
Submissions, seen by IMN, received by the Department identify the significance of a unique personal identifier (UPI) for each person using the health service and the data protection challenges it would pose.
Mr Barton says that a UPI, “would assist the Department and the HSE in trying to assess continuous episodes of care and tracking patients, instead of being forced to use proxies in the process of data collection. In reality, at the moment, major suppliers like pharmacies have better databases on the health service than the State.”
Speaking about the Bill, healthcare ethics lecturer at University College Cork, Dr Kieran Doran, told IMN that anything which rationalises the approach to keeping medical records is to be welcomed.
“The problem at the moment is that record keeping is subject to two different Acts – Freedom of Information and Data Protection,” Dr Doran says.
“The new Bill is a step in the right direction in making the rules governing record keeping more clear.” Also planned is a proposed Bill to prohibit the use of sunbeds by persons aged under 18 years and to provide for the compulsory placing of warning notices. The Department of Health received 18 submissions on its plans for such legislation; the majority of which are in favour of banning the use of sunbeds for persons under the age of 18.
Other items on the agenda include the Nursing and Midwives Bill; the Mental Health (Amendment) Bill, which will provide for a number of minor amendments to the Mental Health Act, 2001; and the Health (Miscellaneous Provisions) Bill, which will remove age limits for travel insurance provided under the Hepatitis C Compensation Tribunal Act, 2006, repeal section 62 of the Health Act, 1953, and repeal the Federated Dublin Voluntary Hospitals Act, 1961.
The programme for the rationalisation of State agencies in the health sector will also require legislation, according to the Department of Health. A National Council on Ageing and Older People (Abolition) Bill is currently being developed, although the Heads have yet to be agreed by the Department of Health.
The function of the Bill will dissolve the Council and provide for its transfer of staff to the Department of Health, and subsume the National Cancer Screening Board into the HSE. With the exception of the eligibility and human tissue legislation, whose publication date cannot yet be predicted, the rest of the Bills are expected to be published some time in 2009.“There is nothing to fear from the new Bills,” Dr Mills contended. “Overall they will make many much needed reforms to the health landscape.”