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Certain critical services could be exempt from prohibition notice under hospital licensing regime

In October 2016, HIQA produced a scenario testing paper, which it submitted to the Department, about how hospital licensing could operate.

The prohibition notice measure is intended to allow HIQA to temporarily close a service within a hospital without closing all of the services.

“Taken at face value, a prohibition notice appears to be a useful enforcement tool and is similar to measures identified in other jurisdictions in a recent research paper by HIQA,” according to the paper, which was seen by MI. “It would provide a mechanism whereby HIQA could swiftly respond to an identified risk without having a material effect on other services operated in the facility. However, there must be consideration given to the potential for service disruption, should HIQA have cause to use this measure. For example, a prohibition notice on an emergency department or a maternity ward would have serious implications for service delivery and knock-on effects for other services that would have to take up the slack.”

As a result, HIQA stated that it may be advisable for the Department to consider exempting some critical services from a prohibition notice — or any other measure that would cause it to cease operations — for a specified period of time.

“There also needs to be clarity around the application for a prohibition notice, ie, does it apply to a speciality or to a function?” according to HIQA.

“For example, if it applies to a speciality, it could mean that a hospital was not permitted to provide ophthalmic services. On the other hand, if it is specific to a function, it may be the case that it applies to a certain physical location, such as an operating theatre or ward. It may be the case that it is both.”

The Authority was also of the view that there should be no time limit on a licence.

It recommended the licence should be issued once and would only be removed at the request of the provider or in circumstances where HIQA has cause to revoke the licence.

The draft general scheme stipulated that licences are valid for a period of three years.

The scenario testing paper also noted that the power to revoke a licence is a power rarely used in other jurisdictions.

 “It goes without saying that such a measure would only be used as a last resort and where HIQA is firmly of the opinion that the totality of the service is either unsafe or the provider is unfit, or both,” the paper stated.

“It is likely that any such measure would be preceded by intensive monitoring and use of the other enforcement measures outlined above.”

HIQA’s research into other regulatory systems found examples of where the regulator can direct that a provider bring in outside personnel to address non-compliances.

“In the NHS in England and Wales, this is referred to as ‘special measures’ and can result in external expertise being drafted in, or external people being appointed to the Board,” according to HIQA.

“There may be scope in the draft general scheme for imposing such changes via the imposition of conditions on a licence. HIQA is of the view that this is something worthy of consideration by the Department.”

However, the paper stated that licences of private providers could possibly be revoked on a more regular basis than public providers, particularly in terms of small, non-hospital surgical settings that are currently unregulated or unable to produce evidence of financial viability.

The Government only approved the drafting of the Patient Safety (Licensing) Bill last December. The legislation is currently being drafted by the Office of the Parliamentary Counsel to the Government and will only be introduced to the Dáil by the Minister for Health once this has been completed.

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