Dáil Éireann debate -
Friday, 13 May 1927

Vol. 19 No. 24

PRIVATE BUSINESS. - MEDICAL PRACTITIONERS BILL, 1927—FOURTH AND FIFTH STAGES.

MINISTER for JUSTICE (Mr. O'Higgins)

I move—"That the Bill be received for final consideration.'

I undertook, on Committee Stage, to examine certain matters that were raised in connection with proceeding before the Medical Council. The question was raised, in the first instance, as to whether it was necessary or advisable to provide expressly in the Bill that the Council might, whenever it considered it necessary, have the assistance of a qualified legal person, and, secondly, whether it was necessary to provide expressly in the Bill that a defendant-practitioner might be represented by counsel or solicitor before the Medical Council. We have discussed these matters with the Attorney-General and staff, and it is considered unnecessary, and even unwise, to provide expressly in the Bill that the Council may have the assistance of a legal assessor. In fact, there is nothing in the Bill to restrict the Council in getting such assistance, and we may assume that it will avail of such assistance. But if you provide expressly for such a person in the Bill, then there is the danger that you may exalt him to a status to which we do not wish to exalt him—in other words, that you may attach some responsibility to him and detract, to some extent, from the responsibility of the Council. If you mention a legal assessor of that kind in the Bill, then it becomes questionable whether the Council have the right to ignore his advice or act contrary to his advice. Questions of that kind would arise. The Parliamentary draftsman is entirely satisfied that, under the Bill as it stands, the Council can avail of such assistance.

AN LEAS-CHEANN COMHAIRLE took the Chair.

Mr. O'HIGGINS

On the other point it is, perhaps, advisable to insert an amendment. The Council have the power to make regulations with regard to their procedure. It is almost inconceivable that the Council would make a regulation excluding the professional representatives of a defendant practitioner. But there might be something to be said for putting it beyond the power of the Council to refuse to admit counsel or a solicitor representing a defendant doctor. Therefore, I would ask the Dáil to accept an amendment at the end of Section 30. It would take the form of an additional sub-section—sub-section (3)—as follows:—

"The person whose conduct is the subject of an inquiry held under this section shall be entitled to be heard and adduce evidence and if he so desires to be represented by solicitor and counsel at such inquiry."

That places the matter beyond all doubt. It effects that the Council may not, in their regulations, exclude a legal representative.

I was asked to look into the exact implications of sub-section (2) of Section 3, which provides that the Council may sue and be sued. (Sub-section quoted.) The query was raised whether, having regard to the fact that in the Bill we provide for an appeal to the High Court on the part of a practitioner whose name has been erased from the register, this section does not make it possible, in the event of such an appeal succeeding, for the Council to be sued by the successful appellant for having improperly deleted his name from the register. We have discussed that very fully, and the position really is that the Medical Council is a quasi-judicial body and would have quasi-judicial privilege. No action of that kind would lie against the Council unless malice were alleged, and unless there was, at any rate, evidence constituting a prima facie case of malice. In such circumstances it is proper there should be an action. But, in the absence of a definite allegation of malice, no action would lie, because the quasi-judicial privilege of the Council would be sufficient to bar an action. I do not think there need be any uneasiness on that score.

As to the composition of the Council, Deputies may take it we have reached our final decision, and that we are not open to reconsider the question.

Sir JAMES CRAIG

I am disappointed with the last statement of the Minister. I thought the Government would have considered the advisability of giving a nomination to the National University and to Trinity College, apart from the University. To many of us it seems rather hard that there should be three representatives given practically to the National University and only one to the University of Dublin, when we consider the number of students attending and the number of graduates sent out by these two bodies. However, if the Executive have made up their minds that they will not make any change, I cannot press the matter further.

I am quite satisfied with regard to the other matters the Minister has referred to, but I am very disappointed that they have not made those two additional appointments. It would have given a great deal of satisfaction to quite a number of people. But I can do no more than I have done by calling attention to what we thought was not a fair division of representation between the two Universities.

Dr. HENNESSY

I might also express my disappointment that the number of direct representatives has not been increased. There is a good deal in what Deputy Sir James Craig says, but that was bound to follow when teaching bodies were selected as the basis of representation. That was bound to result in an inequality of representation, and I appreciate the difficulty to the Minister or any other body in getting over it. On the whole, I think the Bill meets the views of the profession, while meeting the views of the Government. Nobody will suffer under it, and I think we might accept it as a final solution of the difficulty.

Amendment agreed to.

Question put: "That the Bill, as further amended, be received for final consideration." Agreed.

Mr. O'HIGGINS

I move that the Bill do now pass.

Question put and agreed to.

Bill ordered to be sent to the Seanad.