The Upper House approved healthcare legislation on Monday to strengthen the mandate of the Bermuda Health Council, amid concerns about inadequate consultation.

Senators were divided on the need for additional feedback on the Bermuda Health Council Amendment (No 2) Act 2024 and a vote was called on the amendment as well as its accompanying regulations.

It came after critics spoke out ahead of the legislation — that would regulate how private medical practices operate — being passed in the House of Assembly on Friday night.

Arianna Hodgson, the Junior Minister of Labour, Finance and Health, said the Bill aimed to meet the needs of the next decade.

She said: “The proposed amendments seek to encourage a shift towards business models that prioritise value-based care.”

Ms Hodgson said there would be fairer compensation for quality outcomes and preventive measures, instead of “just the volume of service completed”.

She said the Bill would deliver a more balanced licensing framework while promoting modernity and innovation, and would not address the clinical standards of the island’s health businesses.

Most health business did not oppose regulatory standards for licensing, Ms Hodgson said, and she noted that they had been consulted.

She said that last October, 47 health businesses took part in a consultation forum in which the core tenets of the Bill were highlighted.

In addition, she said follow-up discussions were held and stakeholders were asked to provide feedback, with ten responding.

However, Robin Tucker, the Opposition Senate leader, said she received several calls from stakeholders with concerns over having their say.

She said: “I am particularly concerned about calls from the health services community about lack of adequate and full consultation.

“I think this Bill may unintentionally create a level of bureaucracy that will not benefit patient care.”

Ms Tucker said while the health council required “teeth” to carry out its functions, there was a need for health services providers, as experts, to give appropriate input.

She added: “There may be some reason why we are rushing this through — I frankly don’t think it will benefit everyone.”

Kiernan Bell, the Vice-President of the Senate, also raised concerns about consultation in the drafting of the Bill.

She said: “One medical practitioner told me that the Bermuda Health Council, in a consultation call, had explained to the doctors and the dentists that the draft legislation had not been circulated because it wasn’t protocol.”

Ms Bell said she had listened in on a process that appeared to be “complete confusion”.

She highlighted mention of a right of appeal for licence applicants, and a judicial review, should their licence be turned down — but that there appeared to be “confusion” between the two processes.

She explained: “Judicial review, in the context of a decision, is concerned with how the decision was made, what was the process by which the decision was made, was it fair, did you have an opportunity to be heard.

“An appeal, in contrast, is concerned with whether the right decision was made at all.”

Ms Bell said the distinction was “critical” since the health service provider would have “no opportunity” to make an appeal under the legislation.

She said this information was not revealed to providers during consultation, and that livelihoods would be affected.

Ms Bell added: “One can understand why there is an element of alarm.”

Kim Wilkerson, the Attorney-General and Minister of Justice, told the Upper House: “I do not know the circumstances at the timing of the drafting on this particular case and why there wasn’t greater sharing of the draft Bill.

“But certainly, there has been sharing because we’ve all had detailed letters back about the shortfalls in the Bill.”

Ms Wilkerson said she too had heard concerns about consultation, and agreed with Ms Bell that more could have been done.

Ms Wilkerson added that “it may not have been at the gold standard, but there has been consultation”.

She told the Senate that patients would need to know if they received an MRI that a body other than the practitioner or health service provider had vetted the equipment.

Ms Wilkerson agreed with Ms Bell on avenues to challenge the decisions of the health council, adding: “It can’t be right that you have to go back to the body that made the decision for a review.

“I think this is a clear point where there could be improvements. But, on balance, I have to support what this Bill is aiming to do and I believe it meets the overarching objective.”

Joan Dillas-Wright, the Senate President, said: “In reviewing the Bill, I support it, because I believe in the role and the responsibilities of the health council.”

Ms Dillas-Wright said she expected to see an improvement in the consultation process.

Ms Hodgson told the Senate that drafts of the legislation were shared during consultation.

She said judicial review was not the first option for a licensee to resolve disagreements with the council, since applicants had a 21-day period to write to the health council on matters of concern.

Questioned on the regulations regarding the importation of equipment, Ms Hodgson said Bermuda had its own specific needs, and followed standards set by the Pan American Health Organisation.

The Bill was affirmed by a 6-3 vote with the five government senators and Ms Dillas-Wright in support, while Ms Bell, Ms Tucker and Dwayne Robinson, an opposition senator, were against it.