Monday, January 8, 2018
By NEIL HARTNELL
Tribune Business Editor
THE Minister of Health has told political opponents to "sit small" over National Health Insurance (NHI), while admitting he has yet to receive a written legal opinion on the scheme.
Dr Duane Sands told Tribune Business that he would "absolutely" make public advice from the Attorney General's Office, recommending that the new NHI Authority Board could ratify actions taken by the former Christie administration, once he obtained it.
Acknowledging that he was "anxious" to receive the written 'opinion', Dr Sands said his comments on the advice last week were based on verbal discussions with Carl Bethel QC, the Attorney General, on his office's findings.
The Minister's remarks sparked immediate criticism from Dr Michael Darville, on behalf of the Progressive Liberal Party (PLP), who argued that the opinion's contents meant the Minnis administration has "no excuse" for continuing to delay on NHI.
This, though, provoked a furious riposte from Dr Sands, who told Tribune Business that the Opposition has "no grounds to gloat" over the "horrendous mess" it had left for the incoming government to "clean up".
"To everybody in the PLP; sit small," the Minister charged. "You have no grounds to gloat. It's all well and good to create a mess and say the time taken to correct the mess is time when we ought to have been doing other things. That's as an absurd position as you can get.
"The truth of the matter is that we got served a lemon and have to make lemonade out of it. We find ourselves in a position of cleaning up an awful mess; finding a less than palatable solution to an horrendous mess."
Dr Darville, responding to Dr Sands' comments last week, said the advice from the Attorney General's Office - as reported - meant the Minnis administration could no longer "stall, delay and defer" over what it planned to do with the NHI scheme left by the Christie administration.
He suggested that the Attorney General had confirmed what the former government "knew all along" - that the contracts entered into by the then-NHI Secretariat with doctors and other medical providers to provide NHI services were lawful.
"Although not a surprise, sadly, after more than eight months in office, and with more than 34,000 Bahamians [having applied for enrollment] in NHI, and waiting on the implementation of these essential primary and selective catastrophic healthcare services throughout the country, the Free National Movement is still unable to articulate the way forward," Dr Darville argued in a statement.
"Rather, The Free National Movement (FNM), with its 'stop, review and cancel' policies, wasted more than eight months on seeking legal opinion, with the aim of undoing much of the good work put in place by the Progressive Liberal Party (PLP) and the NHI secretariat.
"The reality is the Bahamian people are watching and, quite frankly, are all disappointed with the political games being played with NHI. We want this present administration to stop blaming the former administration for the delays concerning the launch of NHI, and to stop making excuses concerning it. We want to see the full implementation of this well thought-out universal primary healthcare programme, which would improve the delivery of healthcare services to thousands of uninsured and needy persons throughout our country."
The exchange between Dr Darville and Dr Sands, who laughed upon being informed of the Opposition's statement, again highlights the extent to which NHI continues to be a 'political football' between the two parties even now that the roles are reversed.
The Minister told Tribune Business that neither he, nor the Attorney General, had said what was done by the previous administration was lawful or would be ratified as 'legitimate' by the NHI Authority Board.
He conceded that whatever the Government and Board now did in relation to NHI would be "controversial", but pledged that any reform actions would be "in the best interest of the Bahamian people".
"Now they want to go back and say what they did was reasonable?" Dr Sands asked of the PLP. "That's patently not what I'm suggesting. Blow me. If it were that simple, and we were minded to be that sloppy and lazy with the problem, life would be so easy.
"The Bahamas wouldn't be in this mess had they done it properly to begin with. Having gotten to this position, we have to go through a very rigorous process to examine the options and make a decision that's ultimately in the best interest of the Bahamian people.
"We have to do this understanding that whatever decision we come up with will be controversial, and it wouldn't have to be controversial had you [the Christie administration] done the doggone thing properly to begin with."
Dr Sands added that "the fundamental issue" facing the Government and NHI Authority Board, chaired by Dr Robin Roberts, was whether they "terminate everything and start over" recognising that the previous administration's actions had no basis in law.
However, he conceded: "I don't even have the published or written opinion. The Attorney General and I had a 'side bar conversation' and discussion over their conclusion, and I said what he said to me.
"He knew we were waiting for this, and obviously the Board would want the written opinion, and I'm quite anxious to have the written opinion myself. I doubt have any reason to doubt my Cabinet colleague."
The Bahamas Insurance Association (BIA), which represents underwriters and brokers in the medical insurance sector, last week urged the Government to publish the advice from the Attorney General's Office amid fears that it would set "a bad precedent" by ratifying actions that had no basis in law.
Acknowledging that the BIA "is entitled to their views", Dr Sands responded: "Yes, absolutely. I have no reason not to do so" when asked by Tribune Business whether he would publish the 'written opinion' once received.
He reiterated that the NHI Board's "hands are tied" by the former administration, given that there are no legal reasons to overturn existing contracts with healthcare providers who are serving 29,539 beneficiaries.
"The substantive issue is, acknowledging this thing was done outside the law, is whether or not the Board can acknowledge what was done without terminating everything, shutting it down and starting over," Dr Sands told Tribune Business.
"That is the fundamental question here.... It's a real conundrum. It's not a question of making what was done legitimate; we have accepted it has been done, and there is no requirement in law to undo it.
"How they put that language into that opinion is clearly going to generate a lot of debate. The summary of it is that the Board can ratify the decisions that have been made to-date as opposed to overturning the whole thing," he continued.
"They [the Christie administration] made a hash of it, they ought not to have proceeded but they did, and we're in a situation where thousands of patients are receiving services. Do we ask them to give that care and those benefits back?"
The BIA, for one, is urging the Minnis administration to uphold the Bahamas as 'a country of laws' and not ratify actions by the former government that it believes were 'outside' the parameters of the NHI Act.
The Christie administration only brought select parts of the NHI Act into effect when it 'gazzetted' them on April 5, 2017. Crucially, no Board was appointed until July 17, meaning that the NHI Authority did not exist and, as a result, the pre-election contracts entered into with medical providers may have been "ultra vires" and outside the law.
The only parts of the NHI Act given legal effect by the Christie administration were those that repealed the previous legislation; indicated when the new one came into force; and established the NHI Authority.
Among the sections omitted were those giving authority to enroll persons in NHI; the criteria setting out who was eligible to enrol; and the framework detailing the functions of health care providers and insurers.