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Coronavirus - Covid-19 Emergency Irish Health Sector Response - Ireland

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We all remember where we were on 17 March St Patrick’s Day 2020. 1 calendar month later we reflect on the Irish and global healthcare systems and how they have been transformed in a manner which previously would have been considered impossible. The Irish healthcare sector has pivoted from ‘BAU’ to a consolidated and single-project led and delivered taskforce under the solid guidance of the National Public Health Emergency Team (NPHET).

The impact of Covid 19 as a public health emergency is utterly unprecedented in terms of its global impact. Dr Mike Ryan, the Executive Director of the World Health Organisation (WHO) recently called for global solidarity to fight the Covid 19 emergency (the “emergency”). He warned that we are “only as strong as the weakest link” and “none of us is safe until all of us are safe”. The words echo daily as we read, with equal part optimism and anxiety, of countries creeping back from ‘sleep mode’ to their open economies.

The Irish government has responded resolutely to the emergency, in part with the introduction of emergency legislation. There are many strands to the emergency legislation and its impact, and in this briefing we look at the impact on the healthcare sector. 

IDA Ireland have confirmed their focus and support in the face of the global emergency. They are engaging with their 1,500+ existing client companies, working with Governments including the Irish Government to ensure companies providing critical products and services can continue to operate, and supporting the HSE specifically in sourcing necessary supplies. The scale and breath of the IDA Ireland reach is of huge practical and logistical benefit to the national effort and the work of the NPHET. The impact of the global economy and global businesses on our national effort is evident in the instructions seen and managed across the tax and funds advisory and transaction practices of Eversheds Sutherland.

Ultimately, we are witnessing the emergence of Public Private Partnerships (PPPs), combining the best of the public and private sectors, with the shared goal of public health and safety. In terms of the healthcare sector it is reasonable to ask whether this is Slaintecare, fast tracked by necessity, and if so is it sustainable.  

Public Private Partnerships

On 24 March, the Taoiseach announced that Irish patients with Covid 19 will be ‘treated for free as part of a single national service, with no public or private’. He also announced that for the duration of the emergency the State would ‘take control’ of private hospitals as part of the government’s plan to deal with the crisis. This is with the intention of an additional estimated 2,000 beds (and equipment) being available for the emergency.

The combination of the public and private healthcare system is effectively a PPP. The long-term benefits of the combination remains to be seen and the sustainability a matter for future analysis. There will certainly be ongoing legal issues to be monitored in terms of clinical and corporate governance. The question of continuity of care to private patients, delivery of clinical services other than related to the emergency, employment and staffing issues, and data protection and insurance issues, amongst others. 

Irish corporates and ‘influencers’ are working alongside the government. Even Bono has heard the call to arms. IDA Ireland have confirmed their focus and support in the face of the global emergency. They are engaging with their 1,500+ existing client companies, working with Governments including the Irish Government to ensure companies providing critical products and services can continue to operate, and supporting the HSE specifically in sourcing necessary supplies. The scale and breath of the IDA Ireland reach is of huge practical and logistical benefit to the national effort and the work of the NPHET.

Since the early weeks of this crisis we have all been uplifted by the numerous pragmatic and practical examples of public private engagement across the public and private healthcare systems. As an early ‘pre Agreement’  example the provision of urgent and clinically necessary care to non Covid 19 related patients, such as cancer care and cardiology services, was managed on the ground  across the public and private hospitals and consultants, the best interest of patients.  

Eversheds Sutherland's support role

Eversheds Sutherland has assisted with a cross department team in the delivery of much needed space to the HSE, by providing partial phased delivery in a challenging environment of a Primary Healthcare facility. This facilitated the HSE freeing up space within St James Hospital for much needed bed space within the Hospital for Covid-19 affected patients. 

The “solutions” will of course include access to step down units and/or accommodation to allow for the transfer of non-critically ill patients. This includes temporary accommodation for people who may need to self -isolate or for staff, as evidenced through the recent agreement between the owners of Citywest Hotel, for whom Eversheds Sutherland acted, and the HSE for use of that property as a Covid-19 related facility. 

Eversheds Sutherland advised Aerogen as they supported HSE acute services by redeploying equipment for emergency use.We also acted for funders in completing the lease of a new facility in Rialto to allow the HSE take over and fit out a medical centre to be used as a “Covid Hub”. 

Some of the headline legal issues worth considering are as follows -

1. Insurance/indemnity and staffing in the private sector

We will look at the issues across the private healthcare sector, looking first at the private hospitals.

Private hospitals have traditionally operated a consultant led and consultant delivered service. In many private hospitals consultants are ‘independent contractors’ who are clinically autonomous. They hold individual professional liability indemnity/insurance cover in line with their practice. They often have property interest in respect of their rooms and facilities. Some hold public and private sector contracts, some private sector only contracts.

We are hearing daily of the evolving progress regarding the ‘Agreement’ entered into by the State with the 18 private hospitals. We are advised that they have entered a 3 month contract whereby the state will utilise the facilities and staff of the private hospitals as required to meet the emergency care needs of patients. Patients will be cared for in locations based on assessment of their care needs, in line with NHPET and HSE planning. The Taoiseach admitted that the actual cost would not be known until end of the contract, but that 115 million euro per month in terms of leases was an ‘an accurate estimate’.

Private hospitals hold professional indemnity, employer’s liability and public liability cover in respect of their staff. We are advised that the staff will remain as employees of the private hospitals and that the new contract proposals relate to consultants only. It is anticipated that underwriters for private hospitals will review impacts on risk and claims management elements of the risks as underwritten. The sands have certainly shifted.

In terms of the consultants, the Medical Practitioner’s (Amendment) Act 2017 requires that they hold professional indemnity cover, to maintain their registration with the Irish Medical Council and remain in practice. The new proposed 3 month contract for private consultants taking up public sector contracts will require them to liaise with the state providers and their own professional indemnifiers. We are advised that many consultants have not yet signed up to the new contracts, with significant concerns raised regarding continuity of care to former and current private patients, and impact on their business continuity planning.

Issues arise in the primary care sector also. The Irish Medical Times recently reported on the State Claims Agency’s confirmation of indemnity cover to general practitioners outside their “normal” practice for non-routine Covid 19 related work under the Clinical Indemnity Scheme (CIS). The Medical Protection Society (MPS) and Medisec have both confirmed that retired doctors who have re-joined the medical register will be indemnified by the State under the CIS for Covid 19 related work. 

The re-emergence of former retirees to assist has been saluted by all, and indemnifiers moved quickly to support them. The MPS have moved to provide free protection for those joining the Health Service Executive effort to tackle Covid 19. “For those retired practitioners who are former MPS members and returning to support primary care, support for non-claims issues will be provided by MPS free of charge”.

Similar provisions are being adopted for doctors returning from abroad to join the national effort. At the time of writing it is understood that clarity has yet to be finalised in relation to wider insurance and indemnity issues. 

The nursing home sector has been calling for NHPET and HSE assistance to meet the increased resident-focussed demands on them and their staff in the face of the emergency. We have all seen the repeatedly highlighted health impact on the elderly and most vulnerable in nursing homes and care settings. In January 2020 Nursing Homes Ireland (NHI) CEO, Tadhg Daly, expressed concern over increased insurance premiums amongst members. Fast forward to April 2020 and the redeployment and retention of the necessary staffing ‘complement’ is the immediate and urgent focus, insurance issues and concerns will be for another day.  

The necessary joined up approach to care in people’s homes is being actively reviewed also. Emerging proposals are evolving. Eversheds Sutherland have provided Home Care Providers with advice, including indemnity advices, on staff secondment to the HSE and related issues. 

2. Procurement

The Office of Government Procurement (OGP) recently issued an Information Note in relation to Covid-19 and Public Procurement. This was published to support contracting authorities in managing procurements where urgency is required during the emergency.

Procurements which are unaffected by Covid-19 should continue to be conducted in accordance with the normal procedures for ensuing value for money, transparency and equal treatment under the European Union (Award of Public Authority Contracts) Regulations 2016.

However, in certain circumstances there may be justification for awarding contracts without first conducting a competitive procurement process. These exceptional situations are also governed by the Regulations and any contracting authority considering such an approach must ensure that it continues to comply with the rules. If an authority makes such a direct award to a supplier, the justification for this could later be challenged and the consequences for the authority and the supplier could be serious.

The OGP also suggests that procurement timescales can be accelerated in certain circumstances. For example, where the open procedure is used the minimum timeframe for the return of tenders can be reduced to 15 days. The Information Note provides specific wording to be included in the OJEU contract notice when this accelerated timetable is being invoked.

Additional guidance is available for those contracting authorities contemplating the modification of existing contracts. Contract change must always be carefully managed in accordance with the Regulations. The unprecedented situation that Covid-19 has presented may require certain aspects of contracts to be amended (eg product and service specifications, fulfilment times, term extensions etc). Contracting authorities have scope to make changes where the need for the modification has been brought about by circumstances which a diligent authority could not have foreseen and where the modification does not alter the overall nature of the contract, provided the value of the original contract does not increase by more than 50%. A modification notice will have to be published in the OJEU, setting out the justification for the amendment.      

Separate, specific guidance was also published by the OGP on 14 April in relation to public works contracts. This applies to contracting authorities which are currently engaged in the procurement of works contractors using the standard form Public Works Contracts or which have existing Public Works Contracts in place. The OGP recommends extending tender deadlines where procurements have already commenced; where tender deadlines have passed but contracts have not yet been awarded, it is recommended that contracts not be concluded until there is greater certainty in relation to the duration of the constraints currently prevailing as a result of the measures taken by the Government to protect public health.  

The State needs to procure extensive volumes of equipment from new suppliers (test kits, personal protective equipment, sterilisation and cleaning products etc) on an urgent basis. New services (eg laboratory and pathology services) are also required. Many suppliers will not be required to compete for contracts in the usual way. There is no doubt that public sector bodies in Ireland and throughout the EU will (and should) be taking advantage of the flexibility afforded by the Regulations at the present time. The current crisis undoubtedly presents many unforeseeable and exceptional situations, which require an urgent response. Exceptional times call for exceptional measures. However, authorities should be mindful that procurement rules still apply and they do not have ‘carte blanche’ to ignore the Regulations. Questions are already being raised in the UK about the manner in which the Government there has managed the procurement of ventilators and other key supplies during the crisis.

3. Disputes/Alternative Dispute Resolution

In the recent past, healthcare related disputes featured prominently across the Irish media. Reports of contract disputes, product liability and clinical negligence claims were commonplace. The current public support for the continually evolving efforts by the NPHET means it is almost unimaginable that disputes may later arise in respect of the decisions made and actions taken during the emergency. It is difficult to conceive of claims arising from the care provided, but they most likely will.

In such instances, there will be a concerted effort to manage claims without recourse to public, non-confidential, adversarial and costly court proceedings. The final Report of the expert group on Tort Law Reforms and the Management of Clinical Negligence Claims, chaired by Mr Justice Charles Meenan, is awaited. It is anticipated that Open Disclosure, and referral for early-engagement via Alternative Dispute Resolutions (ADR) processes will be supported. In the context of Covid-19 crisis management, Eversheds Sutherlands have been involved in advising businesses on health and safety and construction disputes via client webinars.

In the event of a claim, the well-established Dunne Principles outline the ‘duty of care’ and legal tests owed by care givers to patients in relation to diagnosis and treatment. The test has been upheld most recently in the Supreme Court decision of Ruth Morrissey and Paul Morrissey v HSE, Quest Diagnostics Incorporated and Medlab Pathology Limited.

What is not in doubt is the level of understanding and informed context that will underpin any future engagement, negotiation, agreement and/or debate regarding decisions or actions taken by the NCPHET and caregivers in delivering on a national strategy. Insurance and indemnity issues, as referred to above, and the levels and cover applicable, may well be the most complex issues to resolve.

The courts are moving to resumed hearings, with remote hearings being trialled. There will likely be numerous request for amendments to time limits related to issuing and serving of proceedings and pleadings.

4. Regulation and the regulators

Healthcare regulation in Ireland has increased exponentially over the last decade. The Health Act 2007 provided for the establishment of the Health Information and Quality Authority (HIQA). It is an independent authority established to drive high quality and safe care for people using health and social care services in Ireland. While previously often associated with public inspections and public reporting of healthcare providers, they have in recent weeks featured prominently in terms of their seminal role in supporting the NPHET. They have adjusted their focus in the face of this emergency also.

As of 1 April 2020 their Health Technology Team (HTA) have published four summaries of academic research and evidence to answer specific research questions posed by the NPHET. They relate to the viral load and duration of infectivity, history of Covid 19 in children, evidence (if any) to indicate that children spread Covid 19, and the average median length of stay of affected persons in ICU. They published a protocol outlining their review and research process, and are providing valued forensic input to the NPHET. HIQA have and are providing significant support and are making a huge contribution to the combined national efforts of the NPHET.

The largest healthcare professional regulatory bodies include the Irish Medical Council (IMC), the Nursing and Midwifery Board of Ireland (NMBI), Pharmaceutical Society of Ireland (PSI) and CORU (health and social care professionals). Each have provided updated guidance and assistance to their members. All are under pressure to meet the demands of new members seeking to update their registrations, as a wave of professionals answer the call to support the national effort.

The IMC has published significant detail relating to Covid-19 on their website. In its ‘Ethical Guidance’ relating to Covid 19 it starkly acknowledges that in this crisis ’allocation of finite healthcare resources in a way that is equitable and just will present difficult choices’. This is an acknowledgement of the exceptional circumstances faced by medical practitioners in managing the Covid-19 emergency. The IMC pre-exiting ethical guidance contained in the 8th Edition of its Guide to Professional Conduct and Ethics for Registered Medical Practitioners (2019) provides little by way of informed preparation for dealing with the emergency.

Pointed Covid-19 practical advice offered to doctors includes ‘the priority for doctors to self-protect’ in order to protect, treat and help patients and communities. The practical realities of time and volume pressures to provide the necessary PPE is clearly a priority of focus. 

In conjunction with the Law Society of Ireland Aisling Gannon of Eversheds Sutherland was due to Chair a Healthcare Regulation Masterclass on 25 March last. The Masterclass will likely be very well attended when rescheduled, with significant learnings to be shared.

Conclusion – where do we go from here?

The public health emergency that is Covid-19 has seen legal, financial and political issues that would otherwise delay and circumvent change management across the healthcare sector, being cast aside.

The HSE National Consent Policy (2016) provides for the eventuality of emergency life threatening situations in which treatment is to be given in the absence of express consent. The exception is limited, and is stipulated as ‘treatment that is immediately necessary to save the life or preserve the health of the service user1. It is against this same benchmark that significant action has been taken nationally over the last month. The Irish Government is taking necessary and proportionate steps to engage maximum resources, maximum staff, maximum beds and equipment to prepare for the anticipated surge in patient care requirements associated with the emergency. The level of engagement, negotiation, agreement, and formality usually associated with such significant public policy decisions have been short-circuited.

From 17 March to 17 April 2020 we have witnessed a seismic shift in the Irish healthcare sector. It has pivoted from being seen as an optional “as necessary”, two-tier service, to becoming the emboldened, enabled and empowered public health emergency service it is today. As I said on 17 March last our healthcare teams are our 2020 heroes. It is their deserved time to shine, to hear and see our profound respect.

The incredible collaborative efforts and community spirit are indicative of a population united in their understanding and appreciation of our frontline and supportive healthcare staff. To quote a much used phrase - it is unlikely we will look back on this period and say that they, the Government and or NPHET did too much or went too far. If such proves ‘true’ they will be applauded for doing all that they are doing.

Eversheds Sutherland are pleased as a business to be working alongside and in support of our clients and wider communities during the Covid-19 pandemic.  We take our corporate social responsibilities seriously and continue to live our purpose and our values.  The Covid 19 emergency is a global one, and the solution will be global.  Eversheds Sutherland, with its strong presence across Europe, Asia, the Middle East and America can support and assist businesses in any jurisdiction. We continue to act for clients domestically and globally across the healthcare and related sectors on all matters related to this global emergency. 

1 At para 6.1

This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full terms and conditions on our website.

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