MHC Healthcare Sector Update - In Brief - Q1 2024

Healthcare Sector Update In Brief

COVID-19 Inquiry: Further Developments in 2024

Catherine Allen Partner, Head of Public, Regulatory & Investigations callen@mhc.ie

We recently discussed in our article Inquiry of State’s Handling of COVID-19 Pandemic that an inquiry will be established by the Irish Government to investigate the handling of the pandemic in healthcare settings such as hospitals and nursing homes. Further updates indicate that the inquiry is likely to be “no-blame” and non-statutory in nature. Although the draft Terms of Reference have been circulated to Cabinet, they have not yet been published.

However, it is expected that there will be a particular focus on nursing homes and hospitals. The inquiry is also expected to last 12 to 18 months.

What can we expect the inquiry to look like?

The Terms of Reference for the inquiry are due to be made available to the public shortly and all indications are that it will take the form of a nonstatutory inquiry. A non-statutory inquiry is an inquiry that a Minister commissions into a matter of public importance. Unlike a statutory inquiry, or tribunal of inquiry, a non-statutory inquiry is not established by legislation. The main difference between statutory and non-statutory inquiries is that the former benefits from certain legal powers to compel the production of documents and examine witnesses. Non-statutory inquiries rely on voluntary co-operation.

Aoiffe Moran Partner, Public, Regulatory & Investigations amoran@mhc.ie

It is expected that the focus will be on longterm residential care facilities for older people, with an independent panel expected to make recommendations on how to strengthen pandemic decision-making. It is important for healthcare organisations that fall within scope to consider their potential obligations to the inquiry early in the process. To assist with this, we have outlined below our top three tips to consider.

Our three top tips for healthcare organisations

Healthcare organisations likely to be affected should start preparing as early as possible and bear the following in mind:

1. Immunities and privileges

A non-statutory inquiry does not entitle you to the same immunities and privileges as a witness before a court or a statutory inquiry. This means you are not entitled to “immunity from suit” and, accordingly, careful consideration should be given to any evidence or documentation that is put before a non-statutory inquiry.

2. Document management and preservation

Preserve any documents that may be seen as relevant to the inquiry and ensure that documents of importance are not inadvertently shredded/ discarded. Any documents that you believe are likely to be relevant should be organised and reviewed to ensure that you are familiar with the contents of the documents and the potential for disclosure.

3. Watch out for legal implications around disclosure

Liaise with your data protection officer about documents that you are considering disclosing. Healthcare documents contain personal and sensitive data so it will be important to consider any potential legal implications of disclosure well in advance.

Conclusion

The terms of reference are still awaited. As matters stand, opposition parties have three weeks to comment and make proposals on the terms of reference before they are finalised.

By taking the pro-active steps outlined above, healthcare organisations can ensure that they are adequately prepared for the upcoming COVID-19 Inquiry.

Our experienced and dedicated Public, Regulatory and Investigations team has extensive experience advising in this area and is happy to assist and provide you with valuable legal advice on any issues that may arise.

Key Findings from ESRI’s Nursing Homes Report

Eimear Lyons Partner, Corporate elyons@mhc.ie

The Economic and Social Research Institute (ESRI) has recently published a new report examining the challenges and changes facing the Irish longterm residential care sector since the onset of the COVID-19 pandemic. The report highlights that the supply and ownership of nursing homes has changed significantly over the past few years. It also sets out the significant differences in Fair Deal funding between public and private nursing homes. The report points out that State intervention was crucial to sustaining the nursing home sector during the pandemic.

Summary of key findings

A summary of the key findings in the ESRI report are as follows:

• As a consequence of the COVID-19 pandemic, the nursing home sector in Ireland faced high rates of COVID-19 infection and high mortality rates. It also faced financial strain as nursing homes were subject to increased operating costs due to, among other things, the cost of addressing staffing absences due to infection and enhanced cleaning responsibilities and infection controls. As a result, the State was required to intervene with significant resources, leading to the establishment of sector specific financial support through the Temporary Assistance Payment Scheme (TAPS). The report reveals that over €132 million was provided through TAPS by the end of 2021, with private providers using the scheme extensively.

Robert Dickson Partner, Corporate | Healthcare Sector Lead rdickson@mhc.ie

• Many small nursing homes, in rural areas in particular, struggled to navigate the challenges presented by COVID-19 and, consequently, closed. These closures have caused a net loss of nursing home beds nationally despite the perceived increase in demand for bed spaces. While public nursing home closures were less common, bed reduction within those nursing homes also contributed to supply reductions as nearly half of all public nursing homes recorded a decrease in bed supply. Further to the ESRI’s regional analysis, while Dublin and commuter belt counties have seen increases in nursing home beds, rural counties, specifically Laois, Sligo, Donegal, Monaghan, Kerry and Leitrim, have the lowest per capita supply. The report describes how these regional inequalities are likely to increase further based on existing nursing home planning data.

• There has been a notable shift in the nursing home sector towards the private sector. It is reported that, by the end of 2022, over three-quarters of nursing homes are privately operated. Private equity funded Real Estate Investment Trusts (REIT) have been consolidating the market in recent years and it is reported that 14 large private operators now provide about 40% of all nursing home beds nationally. The ESRI also notes that independently owned and operated nursing homes, often family run businesses, which previously dominated the sector, now supply about 35% of beds nationally.

• The report discusses the varying staffing models used by different types of providers of nursing home care and raises questions in relation to incentives driving the private and public care providers. The ESRI describes that the increased dominance of private equity funded operators means that the nursing home sector is now intricately linked to economic conditions and international factors.

• Traditionally nursing homes, both public and private, in Ireland were owned and operated by the same entity or family. Under the new model of private equity ownership, nursing homes are owned by a real estate owning entity but care is provided by a separate operating entity. These structures result in the nursing home operators paying rent to REITs who can avail of tax advantages. This model also allows for ownership and residential care, regulations, hiring and the like to be treated separately.

• The ESRI notes a large difference in Nursing Home Support Scheme (Fair Deal) funding across public and voluntary/private nursing homes. It notes that average prices for a Fair Deal-funded bed in public nursing homes are 55% higher than in a voluntary/private nursing home. The report highlights that Fair Deal prices per bed have also not kept pace with increases in inflation and nursing homes in Dublin and commuter belt counties receive more Fair Deal funding per capita than in rural counties.

• The report refers to the expert panel on nursing homes, established to advise the Minister of Health, on the future of long-term residential care in Ireland. The expert panel previously highlighted a need for a shift towards more home-based care for older people outside of nursing homes. This recommendation, if implemented, is likely to significantly affect nursing home bed demand, the complexity of residents’ needs entering residential care and the need to better integrate nursing homes with other health and social care services.

• The report emphasises the need for policies to harmonise financial incentives for operators and care providers with the primary objective of fulfilling residents’ health and social care needs. It further provides that it is crucial for the sustainability of the sector that a balance is struck between:

1. The financial viability of providers

2. Compliance with regulations covering health and social care needs, and

3. The strategic planning of supply to meet demand across the country

Conclusion

The ESRI’s report highlights once again the issues and challenges facing the nursing home sector in Ireland since the pandemic and reiterates the need for a sustainable long-term care system for older people in Ireland.

While there has been significant consolidation and investment in the Irish nursing home sector in recent years, this has slowed down as a result of increased operating costs and issues with funding. Without new investment in the sector, it is difficult to see how new bed capacity will be provided. It is understood that there are some projects under development or due to be completed soon. However, there are few projects planned given the current crisis in the sector.

HIQA independently regulates all nursing homes in Ireland. It sets the standards and quality of care across all nursing homes and conducts inspections on a regular basis. While there have been a number of reports on the sector, a key theme is that reform of the sector is urgently needed.

Ensuring full compliance with the many obligations and standards associated with owning and operating a nursing home requires careful consideration. For more information and expert advice on these issues or, indeed, regarding any anticipated transactions in the sector, contact a member of our Corporate or Healthcare teams.

Healthcare Litigation Review of 2023 and Prognosis For 2024

Katie McAuliffe Senior Associate, Medical Law kmcauliffe@mhc.ie

During 2023 there was a significant number of applications before the court seeking to dismiss medical negligence claims on grounds of delay. We review the mixed outcomes and the trends emerging from the court.

This year also saw the court having continued focus on the need for precision in pleaded allegations. The importance of having independent expert medical opinion supporting those allegations was also highlighted.

The evolving story from 2023 is open disclosure with the enactment of the Patient Safety Act. As this Act has yet to be commenced we look forward to 2024 to see how this story further unfolds.

Delay - two aspects

1. Delay in serving medical negligence proceedings

In general, a patient has a period of two years to issue proceedings. This two-year period starts when a patient becomes aware that he/she has been significantly injured as a result of possible negligent medical treatment. Once proceedings have been issued, they must be served on the hospital within a further period of one year. If not, the patient must apply to the court to renew the proceedings showing special circumstances as to why the proceedings were not served within the one-year period. Where there is a delay in renewing the proceedings, it is open to the hospital to seek to set aside the renewal.

Kevin Power Partner, Head of Medical Law kpower@mhc.ie

The court has looked at the “special circumstances” test in several cases including a recent case of Byrne[1] where there was a delay of more than five years in the patient applying for the renewal. The court allowed this claim to proceed despite this delay. While mere inadvertence, staff shortages or Covid-related delays will not constitute special circumstances, they were found to exist where:

• The patient had been proactive throughout in seeking his medical records and radiology imaging from his treating hospital

• The delay was compounded by the hospital not providing the imaging in an accessible format

• The patient had been proactive in engaging with a medical expert who could not conclude the expert report without accessing the awaited imaging

• The hospital could not show any specific prejudice arising from the delay

• Despite the lengthy delay the balance of justice favoured allowing the claim to proceed

2. Delay in progressing medical negligence claims

Where proceedings are properly served the patient must then progress the claim pro-actively. If the patient delays, it is open to the hospital to apply to dismiss the claim on grounds of delay. The applicable test is the three-limb Primor test[2]:

1. Is the delay inordinate?

2. Is the delay inexcusable? If the answer is yes to 1 and 2, then

3. Does the balance of justice favour dismissal?

We considered the mixed outcomes where the court dismissed some cases and not others in previous updates.

• The emerging messaging from the court is that a claim is more likely to be dismissed in the following circumstances:

• The delay by the patient is excessive from the start, ie nearly the full two years to issue proceedings and the one year to serve were used up

• The hospital was not put on notice of the claim before service of proceedings

• The allegations pleaded were general and not specific as to the date and nature of negligent treatment along with injuries suffered[3]

• No expert medical opinion obtained supporting the allegations

• No picture of active steps by the patient

• The hospital can show specific prejudice, ie where the specific memory of a treating doctor is necessary to defend the allegations meaning that the existence of the medical records is not sufficient

• The medical records no longer exist and/or treating doctors are no longer available

• The hospital argues reputational damage to the treating doctor(s), especially where a claim is maintained for years without supporting expert medical opinion

• The hospital itself did not contribute to any delay

Open disclosure

Following significant public and legislative debate the Patient Safety Act[4] was enacted in 2023. While this Act has yet to be commenced, it represents a shift from a voluntary to a mandatory regime of open disclosure. The Minister for Health has since launched a National Open Disclosure Framework to complement the Patient Safety Act.

The Framework will apply to both public and private health and social care providers. It sets out a consistent system-wide approach for open honest communication following a patient safety incident. Overall, it aims to embed a practice of open disclosure within the health services and to foster a culture of patient safety that is focused on continuous learning and improvement.

The Court of Appeal decision of O’Keeffe[5] is an example of where there can be interplay between open disclosure and discoverability of confidential staff statements submitted to a hospital risk management enquiry. The O’Keeffe decision is discussed by our team in a previous update. While future cases will be decided on their facts, it would appear that a hospital will have to show very compelling reasons why confidentiality assured to staff in providing statements to an enquiry should outweigh the interests favouring disclosure.

What to expect as we move into 2024

Periodic Payments Orders

Justice Plan 2023 set out several proposals towards reforming medical negligence litigation which we discussed previously. Progress has been made during 2023 with the commencement of legislation[6] to allow the Minister for Justice to consider a broad range of factors when making regulations to set an indexation rate for Periodic Payment Orders (PPOs). PPOs are a means to compensate patients who have suffered catastrophic injuries. PPOs have not been used for several years as the indexation rate would likely result in under-compensation. Hopefully, the awaited ministerial regulations specifying a new indexation rate will lead to a revival of PPOs.

Reform of the Coroner’s Service

Steps towards reform of the Coroner’s Service are also underway with a public consultation service seeking input as to the future structure, resourcing and working of the Service. The Department of Justice has established an Advisory Committee to support this consultation process.

The role of the Committee includes advising on draft reform proposals. The Committee has already made some recommendations including creating rules relating to verdicts to ensure consistency by coroners nationwide. It was also recommended that a central database be established to record recommendations made by all coroners.

Opt-out organ donation

The Human Tissue Bill[7] is progressing through the legislative process. The aim is that people will be deemed to have consented to be organ donors unless they register to opt out of this system during their lifetime. The Bill will also introduce additional provisions for communicating with families where a coroner’s post-mortem is required and organs or tissues are being retained.

Updated guidance for medical practitioners

The Medical Council recently launched a new edition of the Guide to Professional Conduct and Ethics for Registered Medical Practitioners. This new edition will take effect from January 2024. It contains welcome updated guidance for doctors on areas including telemedicine, open disclosure and when acting as an expert witness in legal proceedings.

Renewed focus on independence of expert witnesses

It is clear from the Duffy[8] case that the overriding duty of an expert is to provide truthful, independent and impartial expert evidence to the Court regardless of which party to the proceedings instructed the expert. This issue arose again in Crumlish[9], being a case relating to an alleged delay in diagnosing breast cancer, discussed in a previous update. It was re-emphasised in Crumlish that an expert’s role is to provide independent advice to the Court rather than tailoring their opinion to fit snugly around the arguments of the party who retained them. Should an expert align their opinion with the interests of the party who instructed them rather than remaining impartial, there can be serious implications.

It is open to the court to exclude that expert’s evidence, as occurred in Duffy, or favour the other party’s expert evidence as occurred in Crumlish, influencing the outcome of the claim.

Conclusion

It seems likely that the Patient Safety Act will be commenced during 2024. While this may present challenges for those working within the health services, the Framework should assist in a consistent approach being adopted to embed a culture of open disclosure resulting in a better, safer care experience for all patients and their families.

We would caution all parties to medical negligence litigation to be proactive. Appropriate independent medical expert opinion should be obtained as the earliest stage. This expert opinion should support the allegations which should be pleaded in as much detail as possible. It is to be expected that the court will continue to keep an unforgiving eye on excessive or necessary delays which could result in claims being dismissed.

We will have to see if 2024 brings further progress in the revival of PPOs, reform of the Coroner’s Service or finally introduces opt-out organ donation.

For expert legal advice regarding the defence of medical negligence claims, contact a member of our Healthcare or Medical Law teams.

[1] Byrne v Adelaide and Meath Hospital Dublin, St. James’s Hospital, Ronan Ryan and the HSE, 2023 IEHC 609

[2] Primor plc v Stokes Kennedy Crowley [2019] IECA 156

[3] Civil Liability and Court Act 2004 as amended, section 10(2)

[4] Patient Safety (Notifiable Incidents and Open Disclosure) Act 2023

[5] O’Keeffe & Anor v Governor and Guardians of the Hospital for the Relief of the Poor Lying in Women Dublin, Court of Appeal, 30 March 2023, Appeal Number: 2022/250; Neutral Citation Number [2023] IEHC 78

[6] The Courts and Civil Law (Miscellaneous Provisions) Act 2023, section 16

[7] Human Tissue (Transplantation, Post-Mortem, Anatomical Examination and Public Display) Bill 2022

[8] Duffy v Brendan McGee & Anor [2022] IECA 254

[9] Crumlish v HSE [2023] IEHC 194

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