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Full capacity deal with private hospitals could ‘trigger legal action’

A senior consultant in full-time private practice has warned that another full lease arrangement between the HSE and private hospitals could trigger large-scale legal action by consultants. 

The consultant, who did not wish to be named, told the Medical Independent (MI) that since the controversy surrounding the previous agreement, many consultants had taken legal advice on their rights. 

The clinician explained: “The threat of legal action would come from individual consultants who now know their legal rights having obtained appropriate Senior Counsel opinion.”

They continued: “The action is likely against individual hospitals if they tried to enter a similar full lease arrangement again with the HSE without consent and agreement of consultants.”

While each individual consultant would have to assess their own terms and conditions of practice privileges granted in hospitals, it is understood that suite owners have “priority access rights” that came with the purchase of consultant suites. If these rights were not honoured in the event of a new agreement, it could result in a successful legal action.

The consultant used the analogy: “If a barber shop had a concession in a shopping centre and suddenly the shopping centre owners handed over that shop to another operator, that is a simple breach of contract law.”

It is understood that if the previous agreement had been extended, some consultants planned to initiate legal proceedings.  

The consultant noted that further attempts to take full control of hospitals would be heavily resisted. However, they said access via a National Treatment Purchase Fund model or a service level agreement for a certain proportion of capacity was “possible”. 

“If the State wants full control, then they would have to nationalise. Then most of us could happily retire early and let the courts determine the lost earnings and compensation due to loss of business.” 

Most private hospitals are currently operating at almost 80 per cent activity levels “pre-Covid”, the consultant noted. 

Negotiations between the Private Hospitals Association and HSE remain ongoing on a new capacity arrangement. 

An internal HSE document detailing plans in the event of a second surge of Covid-19 includes provision for the takeover of private hospitals within one week and a contract agreement with private hospitals lasting two years.

Contractual arrangements with publicly-employed doctors will be agreed with the Department of Health, the document outlines, while the Department will also “agree arrangements for the procurement of private doctors” (see page 3▸).

Grave concern remains around hospital capacity during the Covid-19 pandemic, ahead of what many clinicians believe will be a hugely challenging winter for both patients and staff within healthcare. 

The concern has prompted Government to direct the HSE to seek an agreement with private hospitals on the provision of “full access” to private hospitals in the event of another surge of Covid-19, including ongoing elective capacity.

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