Special Edition April 21, 2020 – Update of April 09, 2020 COVID-19: Measures within the Healthcare Sector

The measures adopted by the Federal Council in order to protect the general public in relation to the spread of the Coronavirus also have implications for operators in the healthcare sector. In this issue of krfacts we would like to provide you with information concerning

1) the postponement of non-urgent procedures and treatment;

2) export controls onprotective equipment;

3) the supply of important medical products; and

4) advance healthcare directives.

You will find our update compared to the krfacts of 09 April 2020 in bold font.

I. Postponement of non-urgent procedures and treatment

On 16 March 2020, the Federal Council introduced more stringent measures to protect the general public in relation to the spread of the Coronavirus. Shops, restaurants, bars and recreational and leisure facilities will certainly remain closed until 26 April 2020. Exceptions only apply for food shops and healthcare facilities.

However, the Federal Council has specified that healthcare facilities such as hospitals, clinics, medical practices, dentists and veterinary practices should not carry out any medical examinations, treatments and therapies (procedures) that are not urgently necessary. These healthcare facilities are thus prohibited from carrying out “elective” procedures or any other procedures or treatments that are not medically urgent, and can thus be postponed. This is intended to avoid unnecessary gatherings of people forming, for instance in waiting rooms. In addition, no capacities and resources that might potentially be required in order to treat COVID-19 patients should be tied up.

According to the Federal Council, a procedure is considered not to be urgent where the individual concerned would not be expected to experience anything other than minor physical and psychological symptoms and adverse effects were it to be carried out at a later stage. In addition, procedures that are predominantly or entirely required for aesthetic purposes or to improve performance or wellbeing must also be classified as non-urgent. Permitted procedures include, amongst others, those for which any delay would result in reduced life expectancy, permanent injury, an increased risk of a considerable deterioration in health or emergency hospitalisation, or considerably impair quality of life.

It is not clear in all circumstances which procedures may now be carried out and which may not. It is therefore important for affected persons to contact healthcare specialists in good time in order to assess and document the situation.

On 16 April 2020, the Federal Council announced that from 27 April 2020 hospitals will be able to resume all medical procedures, including non-urgent procedures. Outpatient medical practices will also be allowed to resume normal operation and carry out all medical procedures, including non-urgent procedures. This covers dental, physiotherapy and medical massagepractices, and should prevent the negative consequences that could arise as a result of people foregoing treatments and examinations. The condition for resuming normal operation is that the protection of the public and of the staff must be assured.

II. Export controls on protective equipment

The COVID-19 Ordinance 2 contains also provisions on export controls over protective equipment. As a result, certain products (protective goggles, visors, face shields, nose and mouth protection, pro-tective clothing etc.) may only be exported with SECO approval. Any exports of such products with-out the requisite approval are punishable by fines (Article 10f(2)(b) COVID-19 Ordinance 2).

III. Supply of important medical products

The Federal Council has transferred additional powers to the Federal Government in relation to the supply of important medical products in order to combat the Coronavirus. For instance, the cantons are required to report their current stock levels. This reporting requirement will make it possible to establish stock levels of important therapeutic and medical products. The aim is to be able to identify any supply bottlenecks at an early stage and to rectify them through targeted action. Important medical goods include for instance ventilation equipment, diagnostic tests, surgical masks and protective suits along with certain types of drugs.

The Federal Government is also able to support the cantons and charitable organisations (e.g. the Swiss Red Cross) in procuring important medical products where needs cannot be covered through normal procurement channels. Material is then allocated centrally.

The Federal Council is also able to oblige companies to produce important medical products if supplies cannot otherwise be guaranteed. The Federal Government may provide financial support to companies that are unable to fulfil other orders due to a refocus on or the prioritisation of such goods.

In order to ensure swift access to promising new therapies and to guarantee urgently required medicinal products, the Federal Council has also stipulated a range of exceptions to existing rules on therapeutic products. For example, where particular prerequisites are met, certain drugs and medicinal products may be approved in order to combat the Coronavirus according to facilitated procedures.

IV. Advance healthcare directives

An advance healthcare directive specifies the types of medical procedures that are consented to and those that are refused. An advance healthcare directive becomes relevant when a person isno longer able to state his or her own wishes, for example during the period immediately prior to death, if any complications arise during an operation or in the event of progressive irreversible brain disease (Alzheimer’s or dementia). Issues of this type may also arise following infection with COVID-19. We recommend that instructions are issued in an advance healthcare directive, or that any directives previously issued be checked at regular intervals in order to ensure that they are up to date and in line with the individual’s wishes, and that they are adjusted specifically to take account of COVID-19 where applicable (artificial ventilation etc.).

V. Further questions

Due to the developing situation and the different circumstances of each individual case, we recom-mend that you contact us with any legal questions.