I am sorry that I had to leave the House and did not hear the debate on this section. Has it only been moved?
Committee on Finance. - Health Bill, 1952—Committee (Resumed).
Question again proposed: "That Section 25 stand part of the Bill."
It has been under discussion for over an hour.
It has been well discussed.
I am sure it has been well discussed, but whether the Minister was able to satisfy certain people in the House I do not know.
I am not sure about that.
Question put and agreed to.
SECTION 26.
I move amendment No. 49:—
To delete sub-section (2), lines 12 to 14.
We hold that the suggestion of a fine of £20 for failure to notify an alteration in circumstances is of great importance. We feel that it is impossible to think of imposing a penalty of £20 on a person who, owing to an error, may forget to report an alteration of circumstances.
This is not a question of a person attempting to get or getting some benefits wrongly. It is simply a case of a person not reporting an alteration in circumstances and being liable on conviction to a fine of up to £20. Circumstances could alter without the actual knowledge of the person concerned. As you are aware, under another section a householder is responsible for the income of an unmarried son residing with him. The income of that son could change without the knowledge of the person involved and, although he might not be aware of that alteration, he would be liable, on failure to notify thatalteration, to conviction and a fine. We think it is of the utmost importance that this sub-section should be withdrawn. I should like to hear what the Minister has to say to justify it. I could understand a penalty being imposed for attempting to secure a benefit under certain conditions, for putting the State or the local authority to wrongful expenditure, knowing well that it was wrong, but for mere failure to report a change in circumstances I think it is very wrong to have such a sub-section as this.
I should like to support Deputy Kyne in this amendment very much indeed. First and foremost, we have to remember the people who may be concerned in this. They may be people living in very remote parts of the country. Even if they are not living in remote parts, we ought to advert to how simply a change of circumstances can be brought about in the family position or in the family income and how a man, quite innocently, might not advert to the fact that a change had come about. For instance, at the time he made the application for the services a member of the family might be unemployed and, while he was still in receipt of these services, that person might get employment. That, of course, would make a change in his circumstances so that he would not be entitled to the services given. I do not want to go into all the things which could happen, but I can conceive quite a number of simple ways in which a person's circumstances could change.
I suggest that it would not be sufficient answer for the Minister to say that this sub-section fixes a maximum penalty of £20 and that, of course, if a case went to court, the judge or justice would take all the circumstances into consideration and would fix the fine accordingly. It is not a sub-section aimed at checking deliberate misrepresentation when a person is applying to have certain services made available to him. It is a question of not reporting some quite simple change in the circumstances that may come about to which the recipient of the services may not advert. I think the amendment is a reasonable one.
These sections from 25 to 31 deal, generally speaking, with the case of false information, if you like. I want to explain to Deputies that when we were considering this scheme about people being entitled to hospital services when their means were within a certain limit we had to consider when drafting the Bill whether they would have to go to the local authority and ask: "Am I entitled or not?" That would be obviously very bad. I said that the way to draft the Bill was: let them go into the hospital and get their treatment and let it be decided afterwards whether they were entitled to it or not, because it is more important after all that they should get the treatment. You must remember that in considering Sections 25 to 31 we have drafted them in that way. In other words, let them go on with the treatment, let there be no delay as far as the treatment is concerned, let it be assumed that the person who applies for admission is entitled to it; but if he makes any false declaration he must pay for it and pay for it heavily. That is the idea.
That is not what we are dealing with at all.
I think Deputies will consider that that is better than having the inquiries carried out beforehand. I am very much in favour of going on with the treatment and accepting a person's statement for the time being but, if he makes a false statement, we should deal with him severely. In Section 31 you will notice that for any false declaration the penalty is very severe, a fine not exceeding £50 or imprisonment for any term not exceeding three months, or both fine and imprisonment. It would be possible to say that if a person moved out of the group he was in he might be liable to these penalties, but in this section we are making it a bit easier for such a person, because a person may move out without realising it.
I think, after all, that if a person moves from one class to another and continues to get treatment and some time afterwards the local authority discovers that in the middle of the treatment this man's income moved up—I do not think, considering the courts of this country, they are going to be very severe on him. If it can be shown that a man did that deliberately, and knowing the full circumstances, and went on receiving free treatment—in that case I think everybody would agree the penalty should be fairly severe. It is a difficult problem, of course, and I do not know whether Deputies could really suggest that it could be modified in any way. I would like to cut it out completely but I think Deputies will agree that the courts of this country are not too severe in cases of this kind. They are very lenient and will not inflict the penalty unless they think a man was deliberately fraudulent.
That is the point, and if I may say—if Deputy Kyne will allow me—there is a very big difference between an act of commission and an act of omission.
I agree.
Here we are dealing with an act of omission.
That is right.
The Minister will himself agree that it is a different thing for a man requesting treatment to go in and deliberately give a false picture of his circumstances and a man to go in and give a true picture of his circumstances and in the light of those circumstances he is classified and gets treatment. Some time subsequent to that a change takes place—it may be such a change as a member of the family who is unemployed getting a job. It is quite possible—and another angle on it—that a change and a substantial change in his circumstances could take place without the person himself being aware of it or being made aware of it. I think the Minister will agree that that is possible. It is not a question of whether the penalty will be £2, or £5, or £20, but if a man is brought in, who is only technically guilty, it is the shame of being brought into court on a charge of having made false representations in order to obtain money or services belonging to the ratepayers to which he was not entitled—thatis the biggest penalty of all you can inflict. I do not mind— and I am sure Deputy Kyne would not object to—penalties for people who go and deliberately make false declarations or statements for the purpose of getting treatment. That is quite a different case from the case Deputy Kyne tried to make here.
As Deputy Morrissey says, we would have no objection if it was a question of fraud to secure benefit, or even attempting to secure benefit by fraud. But the Minister in starting his reply gave me the impression, whether he intended it or not, that the first thing required was to have got the benefit. That appeared to me to mean that you would have to have got the benefit before you would be charged, but the section does not say that at all. It says:—
"Where a person is recorded for the purposes of this section by a health authority as entitled on account of specified circumstances to a service provided by the health authority under this part of this Act, he shall notify the health authority of any change in those circumstances such as renders him no longer entitled to the service."
Then, in the following sub-section it says he can, on conviction, be fined up to £20. I want to say this: that the person who gives all the information as required in the first instance to whoever is appointed to find out his classification, has no knowledge outside his circumstances and wages or income of what position or class he will be allocated to. If his means bring him almost out of his group any minor alterations of income later may put him out of it. Therefore, he is afraid that unless he reports every single alteration in his circumstances, he may go out of his group automatically and make himself liable on conviction to a fine. I think Deputy Morrissey puts it extremely well when he says this would be a crime of omission rather than commission.
I want to stress again the case of a person whose son would get employment and wages, and if the son did not report that employment the father ormother could be held guilty under the section. I think that is definitely the case. Whatever the Minister says— and we are all in agreement with him in stopping people drawing benefit wrongly—I do not think the section should be left stand as it is.
I think the Minister might have the section looked at by the Attorney-General and his advisers because it does seem that the section introduces a completely new principle of criminal responsibility. Hitherto, any criminal conviction must depend on the act of the person who is convicted or charged. It cannot depend on the act of a third party or, as in this case, on the act of a fourth party, because the section, as framed, makes it an offence for a person who is recorded by a health authority. If the Minister will bear with me—it is not the fact that the person has improperly procured a benefit by improperly securing his registration, but the offence occurs, apparently, if somebody in the county council office enters the name of a person in his book as a person who is entitled to treatment. By that very act—by an entry made in a book in some county council office—a person suddenly finds himself guilty of a criminal offence although that person may have done nothing to contribute to it. I am sure that is not the intention of the Minister. But if a new offence is being created by statute, I think we should be extremely careful not to introduce some new concept of criminal responsibility, because if one does, then, not only may it lead to an injustice, but it gradually brings the whole criminal law into a certain amount of disrepute.
There are quite a number of difficulties in cases such as this because the words "family income" are introduced and bring a number of different factors into play. It is not clear from the section whether it is only the head of the family who is liable to punishment, or whether each member of the family who is also recorded would be guilty. We know a good deal of difficulty has arisen—I think in Dublin particularly—in regard to differential rents and the assessment of income for the purpose of payment of differentialrents in this way: the family income is assessed for the purpose of assessing the rent, and in many cases some of the younger members of the family have not fully disclosed to their own parents their full wage. They may have got a slight increase of 5/- a week, or something like that, and have failed to mention it at home and kept it as additional pocket money. In a number of cases, where these increases were traced by the corporation, it led to a considerable amount of difficulty. It led to difficulty not only in the family relations when the parents discovered that their eldest daughter or their eldest son was in fact receiving 5/- more in pocket money than they thought, but it created a difficulty for the tenant concerned. I can visualise other difficulties arising in this case and the Minister would do well to reconsider the section and to ascertain the views of the Attorney-General as to whether it would be advisable to create a new type of offence of this nature which can occur without the person charged having done anything at all to make himself liable to a penalty.
Mr. A. Byrne
I do not think this clause should stand as it is, because it is one that will cause more dissension in families than any other section of the Bill. We in the corporation have had some experience of matters of this kind where forms were filled in by people who were looking for houses under the differential rents scheme. It is quite possible that a son or daughter will not tell parents that he or she is getting £7 a week. He or she may say that the weekly wage is only £6. If you are going to have these inquiries and to institute this detective system, I say that this is the worst form of a means test ever proposed in this House. It is quite conceivable that a member of a family may fill a form in order to get benefits to which he thinks he is entitled. In that form he will give the details of the family income. Some time after the form has been filled, some member of the family, as a result of trade union activities, may get an increase in wages, say of 12/6 per week,to meet the increased cost of living. Is that to be taken into account as an increase in the means of the family sufficient to deprive them of any benefits under this section? I should like to inform the Minister that a similar regulation is in operation in Dublin and many other places in connection with the differential rent system and it has led to a good deal of family dissension. I put it to the Minister that any statement made by the head of a family when filling up these forms which he believes to be generally true should not be used as a basis for preferring a charge against the person who made it on which he is liable to be fined £20.
Some Deputies have approached the discussion on this amendment as if there were not at present services in operation in which a similar means test, as is envisaged here, applies. I know that in many services administered at present similar protection is provided for public authorities. In my opinion, we must have some deterrent in matters of this kind, where the expenditure of public money is in question. We shall have to provide out of the rates our proportion of the expenditure on these services.
I know that the method adopted, in my district at all events, in the case of existing services, is that discreet inquiries are made with regard to an applicant's circumstances. These inquiries are treated confidentially. I see no reason why the services contemplated in this portion of the Bill cannot be administered in a similar fashion—in a manner which is very well known to every member of a public authority. It is an everyday occurrence. You have it in the case of the old age pensions administration. Only this morning we had to refuse pensions to people who had incomes far in excess of that under which pensions are permitted. You will have the same difficulties here when it comes to administering these services. I think that Deputies on the opposite benches are more anxious to run up against difficulties than to try to avoid them.
The trouble with what Deputy Walsh has said is thathe did not mention one word about what the amendment is seeking to do.
I am well aware of what the amendment does.
If the Deputy intended to refer to it, he certainly did not do so. He talked about what we are doing already but we are not doing anything already like what is put forward in sub-section (2) of this section. It is not done in relation to old age pensions. This sub-section and the amendment are directed to what may happen during the time a person is in receipt of treatment. I do not object at all to what Deputy Walsh has said with regard to persons who are looking for benefit, but what we are dealing with here is a change in the circumstances of a person or of a household during the time that that person or that member of a household is in receipt of treatment. Do not forget that that change in the family circumsances may take place when he is 50 or 100 miles away in hospital and knows nothing about it. Although he may not even be told about it, he is still held responsible for it and is brought into court. If he is brought into court on a charge of obtaining money or services by false pretences, then it does not matter whether he is fined 1/-, £1 or £50. He does not mind the monetary penalty so much; it is the disgrace of being brought into court and exposed in the local papers that is the real penalty. There is the danger that a man may be charged with an offence of which he was not alone entirely innocent but of which he was entirely ignorant.
Surely Deputy Morrissey is aware of cases where people have been prosecuted for claiming old age pensions and where a refund of the money obtained under false pretences had to be made? Claims have been made, even against the estate of deceased persons who had drawn old age pensions to which they were not entitled, and the heirs to the estate had to refund money, in some cases to my knowledge, a couple of hundred pounds. There is no use in saying that these regulations do notrefer to old age pensions. They do and to any other scheme where a person makes a false declaration.
We are not dealing with a false declaration here.
What I should like to know is whether a decision as to the means will be made in the same way as under the differential rent system. In Cork City, for instance, in dealing with differential rents, it is only the first £2 of a dependent's earnings that is taken into account and there is an allowance of 5/- on the first £2. There is a sum of 10/- allowed off the main wage earner's earnings, before you start to divide. Under this test, will the whole of the dependent's income be taken into account or will it be the same as the differential rent system where only the first £2 of the dependent's earnings, after deducting 5/-, is taken into account?
The House has already dealt with that on Section 14.
In reply to Deputy McGrath and Deputy Walsh, who compared this with the old age pension scheme, may I say to Deputy McGrath, who says that a person can suffer a penalty for claiming wrongfully an old age pension, that I never yet heard of a case of a person being punished for claiming? There is a penalty for drawing an old age pension but a person cannot be punished for claiming, or, if he can, it is never done. But this does not even say that. It is not necessary to offend against the section by claiming. It puts on a person the responsibility of reporting alterations in circumstances of which he may have no knowledge, and, if he does not do so, he is liable to a fine on conviction. Surely no Deputy is going to support that?
Deputy Kyne has almost understated the position. It seems to me there are two steps involved in the section. I am quite certain the Minister must agree with this criticism. The first step is where a person is recorded by somebody in the local county council office as being entitled to a certain service and that recording may take place without theintervention of the person involved. It may have happened some years before and the person involved may not even know that he is recorded, that he is on the register in the county council offices. That is the first step, and it is a step which occurs not necessarily within the knowledge of the person involved. When that happens an automatic onus falls on that person to report a change of circumstances, but if that person does not know that he is recorded in the county council offices, how can he possibly think there is any duty cast upon him to report the change of circumstances?
I am quite certain that the Minister will agree to have that section completely re-examined and recast. It would be creating a completely new concept of criminal responsibility which it would be dangerous to accept because it means that we would go on accepting it in other Bills. I appeal to him to indicate that he will have the whole matter examined and the section recast. Everybody in the House will agree that, where somebody obtains money or service by false pretence, the money is recoverable and that possibly some punishment may be inflicted for making false declarations to obtain it; but I want to emphasise this for Deputy Walsh and Deputy McGrath: that is not what is involved in the section. The criticism being levelled against the section is that it is creating a new type of offence which may occur, not by reason of any act done by the person who will suffer the penalty, but by reason of some act done by some outsider, either in his own family or in the county council office.
The pictures drawn here of what may happen under certain Acts are really terrifying, but I am sure that, if we went back over Acts in the past, we could draw similar pictures of what might happen to the individual. These sections from 25 to 31 are practically a copy of the sections in the Social Welfare Act, which sections are practically a copy of what is in the Old Age Pensions Act of 1908, so that they are practically in operation since 1908.
Could the Minister give us the references to the sections?
We do not hear of a few hundred old age pensioners going to jail every week because they did not notify a change in their circumstances. Every Deputy knows that it does not happen.
That is not in the old age pensions legislation.
It is. If an old age pensioner is drawing a pension and his means change, he is liable to a penalty, if he does not notify the authorities of that change, for drawing the pension.
This refers to drawing benefit.
The section relates to the drawing of benefit.
When he has been recorded.
Will the Deputy go to the county manager next week and say: "For fear I might get sick, I want to be recorded"? Nobody will go in unless he is sick first.
What then becomes of your earlier case about the man getting the white card?
That merely saves him going at night for a ticket. A man in the middle income group is not likely to go to the county council to be recorded, unless he gets sick first. That is the experience. In any case, as I said already, the courts are very lenient in these cases, but I am prepared to meet Deputy Morrissey's point. He says that we should be more lenient in cases of omission than commission, and I agree. I am quite willing to put words into the section to provide for the case of a man "knowingly" wanting to defraud the local authority. I think that would probably cover all the anxieties I see around me, although I think, personally, it is not necessary, because I am quite sure there is no district justice who would convict a man, unless he felt it was knowingly done.
Do you not agree that it is the duty of the Opposition to examine every section and make the thing foolproof?
I agree, it is, but it is not the duty of the Opposition to go too far.
It is not going too far.
You are not included in the opposition to this.
What I said in the beginning was that I was anxious to draft this Bill in such a way that people could go to hospital first and claim afterwards, rather than lay it down that they should go to the local authority and say: "I am entitled to treatment" and then, while in extreme pain or being on the point of death, have to wait for a decision on the point. Let them go into hospital and then claim. Deputies must keep in mind the fact that what we say is: "If you claim you are entitled to treatment, take it, but, if you claim wrongly, you will be severely dealt with". That is the idea in the section and I want that kept in mind.
That is provided in the next section.
That is, if you like, the spirit of the section.
I should not care to follow out and to examine what the Minister has just said and what he said earlier about going into hospital first and claiming after. I should prefer to know where I stood, if possible, beforehand. It is all very fine to point to what has happened and to argue that all this may be very reasonably done. We have all had the experience, so far, that things, generally speaking, are very reasonably done by local authorities and their officials, but that is not what we are dealing with here. It is our duty, as Deputy Kyne said, to make this piece of legislation or any other legislation—particularly a piece of legislation dealing with health—as foolproof as possible. I want to repeat now because apparently the Minister either did not hear me or does not attach the same importance to it as I do, although he probably knows the country at leastas well as I do, that it is not a question of a district justice being lenient. The real stigma, the real penalty on a man, is being charged in the local district court with fraud and the case being reported in the local paper and read by his neighbours. That is the point, and not the question of whether a district justice is lenient or not, as the Minister, with his own knowledge of rural Ireland, and every Deputy will agree.
What I want to stress is that this is not on the same basis as the old age pension. The old age pensioner is responsible for himself, for his own means and for the extent to which his own means affect his right to receive a pension.
Remember, here you are making the patient responsible, not merely for his own means but for the means of every member of his family and the amount which every member of his family contributes towards the household. I submit that is quite a different thing. If we are dealing with just one person responsible for his own sins, either of commission or omission, who, by some deliberate act of his own, is refraining from or refusing to report this change of circumstances that would be different, but what we are dealing with here, as I have pointed out, is the case in which it is possible a person may offend against this section without knowing that he has so offended.
The same argument applies in relation to differential rents.
I think it would be worse because the person at the time of the change in circumstances could be in hospital and a long way from his own home. He might not even be informed of the change in circumstances that had taken place. I think Deputy McGrath will agree there is a difference there. I am not making the case as to 95 per cent. of what would happen. I am trying to cover the odd 5 per cent. or the 1 per cent., and I do not think anyone here would want any person brought into court and charged with fraud or obtaining under false pretences services or moneys to which he was not entitled.
Question put: "That the words proposed to be deleted stand part."
The Committee divided: Tá, 65; Níl, 17.
Tá
- Aiken, Frank.
- Allen, Denis.
- Bartley, Gerald.
- Beegan, Patrick.
- Blaney, Neil T.
- Brady, Philip A.
- Brady, Seán.
- Breen, Dan.
- Brennan, Joseph.
- Breslin, Cormac.
- Briscoe, Robert.
- Browne, Noel C.
- Buckley, Seán.
- Burke, Patrick.
- Butler, Bernard.
- Calleary, Phelim A.
- Carter, Frank.
- Childers, Erskine.
- Cogan, Patrick.
- Colley, Harry.
- Collins, James J.
- Corry, Martin J.
- Crowley, Honor Mary.
- Crowley, Tadhg.
- Cunningham, Liam.
- Davern, Michael J.
- Derrig, Thomas.
- de Valera, Eamon.
- de Valera, Vivion.
- Fanning, John.
- ffrench-O'Carroll, Michael.
- Flanagan, Seán.
- Flynn, John.
- Flynn, Stephen.
- Gallagher, Colm.
- Gilbride, Eugene.
- Harris, Thomas.
- Hillery, Patrick J.
- Hilliard, Michael.
- Humphreys, Francis.
- Kenneally, William.
- Kennedy, Michael J.
- Lemass, Seán.
- Little, Patrick J.
- Lynch, Jack (Cork Borough).
- McCann, John.
- MacCarthy, Seán.
- McEllistrim, Thomas.
- MacEntee, Seán.
- McGrath, Patrick.
- Maguire, Patrick J.
- Maher, Peadar.
- Moran, Michael.
- Moylan, Seán.
- Ó Briain, Donnchadh.
- O'Reilly, Matthew.
- Ormonde, John.
- O'Sullivan, Ted.
- Rice, Bridget M.
- Ryan, James.
- Ryan, Mary B.
- Sheridan, Michael.
- Smith, Patrick.
- Traynor, Oscar.
- Walsh, Laurence J.
Níl
- Beirne, John.
- Blowick, Joseph.
- Byrne, Alfred.
- Corish, Brendan.
- Davin, William.
- Desmond, Daniel.
- Everett, James.
- Finan, John.
- Keyes, Michael.
- Kyne, Thomas A.
- McAuliffe, Patrick.
- MacBride, Seán.
- Murphy, Michael P.
- Norton, William.
- O'Hara, Thomas.
- O'Leary, Johnny.
- Tully, John.
Tellers:—Tá: Deputies Ó Briain and Killilea; Níl: Deputies Brendán Mac Fheórais and Kyne.
Question declared carried.
Question proposed: "That Section 26 stand part of the Bill."
It is worth while now taking a look at the section before we leave it. It has to be read in conjunction with Section 25. Deputy Walsh spoke about the discreet inquiries which are usually made about many matters. The Minister described Section 25 as a "simple section". I think we will have to call it the simple section. I do not think there was a quorum here when the matter was discussed and I wonder how many Deputies realised that the county manager will be the person who will take such steps as he thinks fit to decide whether persons come within the lower, middle or higher income groups. At any rate, that has been decided under Section 25.
Under Section 26, a parent, classed by the county manager, say, as coming within the lower income group, happens to pass into the higher income group by reason of some member of his family getting an increase, and if he has received treatment of a particular kind under the Act subsequent to the increase in the wages of his family and does not report it he may be prosecuted for it. I wonder whether thediscreet inquiries about which Deputy Walsh spoke will be continuous?
Will the county manager, in addition to making the necessary inquiries to decide the thing originally, in respect of people receiving benefits under this measure continue the discreet inquiries as to how the person's family income is progressing? Will complete responsibility be left on the head of the house or on the person who receives particular treatment? According to Section 14, not only is the head of the house entitled to receive particular treatment but also the members of his family. Who is responsible for making the declaration in regard to the income? Is it the head of the house?
If a particular member of a man's family receives treatment under this Act and the income of the family rises on account of an increase in the income of that particular person or some member of the family other than the head of the house, is it the head of the house who will be prosecuted in this matter or is it the person who is receiving institutional treatment?
Under Section 25 it will be noticed that where a person is entitled to any service the health authority may require that person to make a declaration in such form as is appropriate. I would imagine that if the person making the declaration is the wife or the son of the head of the house such person would be prosecuted. I think there is a provision further on in the Bill in connection with a person who happens to be in collusion with the head of the family. In that case I presume he also might be prosecuted. The person who contravenes in regard to the making of the declaration is the first person who would be prosecuted in cases of that kind.
I have already stated the position in regard to Section 26. It is fairly obvious. It deals with the person who receives treatment which he claimed to be due according to his means, and while in receipt of that treatment his means improved to such an extent that he would be outside the middle income group if reassessed. If he knows that is the case and does not disclose thefact to the local authority, then he is guilty of an offence under Section 26. Even though the amendment proposed by Deputy Kyne was rejected by the Dáil, I would still be inclined to amend that section so as to make it clear that a person could not be prosecuted unless he knowingly committed an offence under the section, or words to that effect.
Section 14, sub-section (2), provides for certain persons who with their dependents are entitled to certain institutional and specialist treatment. Section 26 says that where a person is recorded for the purposes of this section by a health authority as entitled on account of specified circumstances to a service provided by the health authority under this part of this Act, he shall notify the health authority of any change in those circumstances which renders him no longer entitled to the service.
Take the case of sub-section (2) of Section 14. Let us say that a man, his wife and three or four children come in on that section and that one of the children is receiving treatment under the specified circumstances that he is a dependent of a person entitled to the benefits provided under Section 14. Is it the member of the family who is receiving treatment who is required to notify the health authority of any change in the circumstances? Is it that person who is responsible for saying that his brother has got an increase, and is he the person who will be liable to prosecution and a fine of £20? What was the original intention in regard to the section as drafted?
The intention was that the head of the family would be the person who would be prosecuted.
It does not say so.
I think the Minister will agree that Section 25 indicates fairly clearly that the person who must furnish the information is the patient, whether that is the father, mother, son or daughter. In that case, if there is to be a prosecution, is it to beagainst the son or daughter or against the head of the household?
This service, if put into operation, will be an expensive one. We must all admit that the county manager will have to keep a very sharp eye on the expenditure. If not, it might become an immense burden. Therefore, I presume he will lay down a level of income above which a person will have to contribute whatever sum is determined by the local health authority—in other words, by the county manager. Let us assume that he fixes the sum at £6 per week.
Where the household income exceeds that, then that person will become responsible for a contribution towards the cost of his treatment. If it is £6, and if the circumstances of that family change by as much as 10/- during the course of the treatment of that person, whether it is the father, mother, son or daughter, then the family automatically goes into a different category, a category that is responsible for a contribution towards the cost of the treatment. The county manager will then be bound to try and recover that contribution, whatever it is, and he is bound also under this section to prosecute. I think there can be no doubt about that. Deputies, I am sure, can see where that could lead to. I take it that the Minister will look into sub-section (2).
I have said that I would. The person will know that he has committed an offence.
Question put and agreed to.
SECTION 27.
Question proposed: "That Section 27 stand part of the Bill."
We should like to hear something from the Minister about this section.
Certain cases may arise from time to time where there may be a dispute between two local authorities as to which local authority is responsible for "a particular person or persons of a particular class." I suppose the only way to deal with that is to have someone who is neutral to makethe determination, and, for convenience, we are putting into the section that the Minister shall decide. A very simple example would be that of a man coming from, say, the County Kildare to Dublin for the day. He gets sick in Dublin and is brought to hospital. Afterwards, the Dublin authority gets the bill and they say: "Well, properly speaking, Kildare should pay this." Cases of that kind will arise from time to time. Therefore, when they do arise it seems better to have someone to decide between them.
I can see the reason for making that provision in respect of a person, but what is the necessity for making it in respect of "a particular class" of persons. Perhaps, the Minister would explain the necessity for that.
I shall give this as an example of what I have in mind. Again, take the nearest part of the County Kildare to Dublin. Suppose there is a fair number of children going to school in Dublin from that part of Kildare, and suppose a school medical examination or other treatment arises for that "particular class" of persons, there is then the question as to who should pay.
That is what is meant by "class" of person?
Yes, a group or class.
Question put and agreed to.
SECTION 28.
Question proposed: "That Section 28 stand part of the Bill."
What is the idea of this section?
I think it is fairly self-explanatory. Where a service is availed of by a person and it is afterwards ascertained that he was not really entitled to it according to his means, then he will be charged. As I have already explained, the idea that we had in drafting this Bill was: "Do not stop a person; let him come along; the fact that he claims the service is, in itself, a declaration thathis means are so and so." If we find afterwards that he was wrong in that, the local authority will say: "Your application in this case is rejected, and, therefore, you must pay."
But why must the charge that he is to pay be determined by the Minister? Why must it be sent up to get approval? Cases of the kind mentioned by the Minister could happen in the early days of the operation of this measure before the people become conversant with its provisions. We find it hard enough to understand it. It is a very difficult and technical Bill. There could be hundreds and hundreds of cases of that sort over the whole of the State. What I am anxious to know is: why the charges in these cases should be fixed or have to be approved by the Minister.
I do not quite understand what this section means. It refers to a person who has availed himself of a service provided under this part of the Act and it is afterwards ascertained that he was not entitled to the service. It then says that the health authority may charge for the service the charge approved of or directed by the Minister. I think that is a matter that is already well covered in the Bill. The Minister has numerous safeguards already for making charges, in practically every section.
I presume that this relates to finance, and nothing else. I find it also in Section 26. Not only is there the right to charge, but, apparently, power is being taken to prosecute as well. I think that there must be something more behind this section than what the Minister has stated, because otherwise I think we would not have a special section to deal with a thing which seems to me to have been amply covered already in several other sections.
I do not think so. This is not amply covered elsewhere but there is nothing sinister in the section. It covers the case of a man whose circumstances there is no time to investigate before he goes into hospital. He tells his own doctor that he is entitled to middle income grouptreatment. The doctor accepts that and sends him to hospital. In the course of the treatment investigations are made and it is discovered that he is not entitled to it; perhaps his valuation is £85 instead of £50. Therefore, he is told: "You must pay". If you look at Section 24 (1) the idea will be clear. This person would be a paying patient and this section deals with institutional services for paying patients. The same words are used towards the end of the sub-section: "...they shall charge for any institutional services so made available the charges approved of or directed by the Minister." I suppose we could have put in there, if you like, the words: "In pursuance of Section 24 (1)". It would be the same thing. That is precisely the point raised by Deputy Morrissey: Why was that not put in? Regulations might be put in to deal with a case which might arise immediately after the Act is passed and, once regulations are made, they will follow Section 24 (1).
Surely the local authority has sufficient authority to charge without having to refer it back to the Minister?
It will not come back to the Minister. It will be under Section 24.
It is provided here: "A health authority... shall charge for any institutional services so made available the charges approved of or directed by the Minister". That is already laid down in all these amendments and sections. What we have been discussing here for the last few days is already specifically laid down in this. Why must we have a sub-section referring it back to the Minister? I am not suggesting this is a sinister section but we have an inquiring mind and we would like to know.
I am in full agreement with the Deputy except for the fact that just after this Act is passed and before regulations actually come in there might be a patient who should have been charged and that may have to be dealt with by a special Order.However, once the regulations are issued no such Order will be necessary.
The Minister rather suggests that this is a transitory provision but surely it is in keeping with the generally loose way in which Sections 25 and 26 have been determined. The Minister's suggestion a short time ago that his idea was: treatment first and decide afterwards, whether a person was entitled to treatment or not, without any difficulty about it, is a frank putting into the Bill as a permanent part of the Bill, the Minister's idea that a manager can say: "We will treat him and find out afterwards whether he is entitled to it or not". It is also an absolutely necessary corollary to the weakness and the absurdity of the machinery that is being established in the Bill for deciding whether the person is entitled to treatment or not. You have a Bill where the county manager is the sole authority for deciding whether a person is entitled to services under this, that, or the other particular class. The inevitable corollary to that weak, absurd and limited machinery is the attitude: "For goodness sake send on the patient to receive treatment and we will figure it out afterwards".
Surely it is a wiser thing when a man claims he is entitled to certain treatment that he should get the treatment and be given a chance of recovery?
Yes. This is not a transitory provision.
It is better to give him the treatment rather than wait until the man is dead or dying.
Hear, hear! May I point out to the Minister and the Deputy that we are here dealing with a very limited class or type of person, the person who is not covered under Section 14? Is that not so?
Yes, who claimed he was covered and is not.
No.
Who is not specifically covered.
It is very hard for the patient, and it will be very hard for his medical adviser to know whether, in fact, he is a person who comes under Section 14 or not. Nobody objects to having done what Deputy McGrath suggests, that the patient should be treated, but it will be a nice point to have determined whether this particular person is a person who comes within Section 14 or who does not.
It is better to decide that while he is alive.
That is not the point. It is easy to say that. If he had some idea as to what he was going to be charged, it might help to keep him alive. The Deputy is right. I do not suggest that it should be otherwise. All I am saying is that if it is to be determined whether this person is a person who comes within the provisions of Section 14 or not, that that should be determined better locally than it can in the Custom House.
Yes, certainly.
It can be determined by the local people who know the circumstances. Why should the charge be a charge to be imposed on him as directed by the Minister? The Deputy will agree with me—at least he ought to—if I were going to hospital tomorrow morning I would feel much happier if I knew the charge which would be imposed on me would be fixed by the officers of the local authority who knew my circumstances rather than by somebody sitting in the Minister's office who had not the foggiest idea of what my circumstances were. That is the whole point I make. There is no question whatever of depriving the person of treatment until it is determined what he is to pay. The question is, who is going to determine that? This could turn on a very fine point—the Minister will agree with me because we had this out on Section 14—whether the person coming into this limited class we are now talking about did or did not come withinSection 14. That can only be determined by the local authority who are more conversant and can make themselves more conversant with the patient's circumstances and his capacity to pay than anybody in the central authority.
Who is suggesting that they should deal with it?
The trouble about dealing with persons like Deputy McGrath springs from the fact that he has not read the Bill or the amendments. He is basing his remarks on what he has been listening to and he has not the least idea what we are talking about.
I have the Bill in front of me.
If he has it in front of him he ought to read it.
There will be a lot of people dead by the time this question is settled.
That is the kind of stupid remarks we get here sometimes. It is absolutely stupid and worse than stupid; it is deliberately ignorant because the Deputy is saying something that nobody in this House has suggested for a moment.
How could somebody be deliberately ignorant?
There are people who are ignorant and who know they are ignorant; and there are people who are ignorant and do not know. The Deputy can choose the category himself.
Let us deal with the section.
Let me say again that there is no question being raised by anybody as to the treatment being made available immediately to the person who requires it.
What we are trying to ensure is that, if the person so treated is entitled to the benefits set out in Section 14, he will get them and that, if it is to be determined as to whether he comes within that section or not, it shall be determined by the people who are inthe best position to determine his circumstances.
I ask the Deputy to read it again. There is not the slightest doubt. The local authority will determine whether he is entitled to free treatment or not. There is no doubt about that. The local authority decides whether he should get free treatment or whether he should pay but, if they decide that he should pay, then they must follow the regulations made by the Minister. That is what the section means.
No, but they must impose the charge directed by the Minister.
That is right.
Whether it is reasonable or unreasonable. That is the point.
That is right.
Surely that charge is already fixed.
As a rule, it is.
It is not. The Minister's own case for this section was that it was not determined, that the regulations may not be made at the time.
Or they may not cover it.
Therefore, it cannot be determined. That is the case I am making.
The Deputy might not have the same attitude as I have to certain people, but the Minister will make regulations with regard to charges. They may not cover a certain person and if a certain person goes in there claiming free treatment when, obviously, he should not have claimed it, the local authority comes along and says: "We want to make a charge on this man", and then it is said: "Unfortunately, our regulations do not cover the matter", I do not want to see that fellow getting off. Therefore, I want to cover it.
Neither do I. Far be it from me to wish to put any more authority into the hands of the county manager but I would infinitely prefer to give the authority, if I have to give it, to the county manager rather than to the central authority.
I agree with you there.
I think the Minister would agree with that.
Yes.
I think a case under this section can be determined better and the charge to be imposed can be interpreted better by the local authority—infinitely better.
On the regulations, it will.
With or without regulations because, if the regulations are there then it will be determined, in so far as it can be determined, by the regulations. If the regulations are not there, then it is to be determined by the central authority, in the absence of regulations and it can only be determined by the central authority, if they are going to advert at all to the circumstances, on a report furnished by the local authority as to the man's circumstances. I must confess that I can see no good reason for this section unless there is some reason for the section that we have not yet got. I do not believe there is.
No.
I accept that if the Minister says so but I must confess that I do not understand why the Minister wants this power.
It is just as I say— because he is not covered by the regulations.
The section reads:—
"... the health authority may charge for the service the charge approved of or directed by the Minister."
I am not very good at wording things.I have not a legal mind, but could it be amended so as to read that the health authority may charge for the service the charge that it is entitled to charge with the approval of the Minster? That would leave the decision to the health authority to fix the charge and, as Deputy Morrissey has so clearly stated here, the health authority is the body that knows what the charge should be, what the circumstances are, and so forth, and the onus is on them then to fix the charge and the Minister may still keep in the background by approving that charge. As the section is worded, the state of affairs would be that it is the Minister who would fix a charge and not the local authority. As Deputy Morrissey stated, we are not very keen on giving the county managers or the health authority, whoever they are, any more authority than they have already but, in this particular instance, they would be better able to decide than the Custom House or the Minister.
May I make this further small point to the Minister? It may be small but I think it is important. The Minister said a moment ago that he did not want to see the fellow getting away with it but under this section it is quite possible for a person innocently to claim that he is entitled to this service.
That is true.
In that case, surely the local authority, with their local knowledge of the person, is in a better position to determine whether he did so deliberately or whether he did it through innocence or lack of knowledge of his real rights under this section.
The local authority has the option, as the Deputy knows, of making a partial charge if they thought he was not able to pay the full charge of £2 2s. or, if he is able to pay the full charge, then he will come under Section 24 and under the paying patient regulations.
May I submit with respect that the local authority has no discretion whatever as far as this section is concerned?
They have discretion under Section 14. Under Section 14 the local authority can admit to the middle income group as well as the insured people and the farmers under £50 valuation and the people under £600, cases of hardship.
Sub-paragraph (d) of sub-section (2).
If the local authorities say that this is a case of hardship they can bring him in there. If it is not a case of hardship, they may say he is a paying patient and he comes under Section 24.
May I submit to the Minister, with respect, that I do not think he is right there? In so far as this section is concerned, as I read it, if a person claims a service to which he is not entitled, he claims it either knowing well beforehand that he is not entitled to it and he gets away with it, or he claims in the belief that he is entitled, because some of his neighbours have told him that under the new Health Bill he is entitled to a particular service. The section is very simple. I agree with the Minister, it speaks for itself. It says:—
"Where
(a) a person has availed himself of a service provided under this Part of this Act, and
(b) it is ascertained that he was not entitled to the service, the health authority may charge for the service the charge approved of or directed by the Minister."
If the Minister directs that a charge shall be made, I am perfectly satisfied that the county manager will make that charge against the patient.
Deputy McGrath fully appreciates how necessary this section may be in certain circumstances to get a person treated while he is alive and he is rather concerned as to the trouble that may be caused to certain people by the delay in making this section part of the law of the land. In view of the various types of criticism that we have made against the measure in differentplaces, about the difficulty of its general administration, I would like to suggest that there is one matter that in the meantime the Deputy might look into—whether there are not people whose lives are being endangered at the present moment by being refused or delayed proper treatment in suitable institutions by reason of the fact that the local administration insists on their being brought to the local institution first before permission is given to have them brought to the institution that their particular medical officers recommend as being the proper institution for treating them.
But they do not insist on that, not in urgent cases.
He does not know the first thing about it.
I take it from what the Minister said just now that if a person claims treatment to which he is not entitled, it would be the intention, more or less, under the section, that the Minister would be empowered to deny him any support whatever or any subvention that is due to him, that if a person claims a treatment and it subsequently transpires that he was not entitled to that treatment but he has claimed it inadvertently, that it is the intention to give him the benefit of any subvention that may be due to him?
Oh no.
I put it this way. Supposing a person claims or believes that he is entitled to treatment when he belongs, for instance, to the middle income group and subsequently it transpires that he is not in that group but is above it; if he is in the middle income group, as I am supposing for the sake of argument, he would be due the subvention of £3 10s. a week for institutional treatment; but if it transspires that he is not in that particular group would he be in a position to rectify this by paying £1 or £2 as the case may be? Would that entitle him then to the subvention?
Do you mean the maternity subvention?
I am only citing that as an instance. The case I really want to make is this—perhaps I have not made myself very clear—that if a person has treatment and believes himself entitled to that treatment but is not and has inadvertently made that claim, it then seems that under this section the Minister has power to decide what he is going to be charged. Will he then be entitled to claim the subvention or will he be entirely penalised and get nothing whatsoever and be charged the full amount?
Such persons would not be entitled to any subvention, because this is an ordinary surgical or medical case, not a maternity case that we are dealing with. The subvention in the ordinary medical or surgical case is only payable to people in the lower income or middle income group. We are dealing here presumably with people above the middle income group. They are not entitled to any help at all. There are various ways in which a person can be dealt with by the local authority. Supposing a person goes in, let us say, believing he is entitled to free treatment, and then on investigation it is found that he is not in the middle income group.
They can deal with that case under 14 (2) (d). In other words, say there is a case of hardship; they can say: "Well, we will give you this treatment and charge you a certain amount." The amount can be anything agreed on in that case. It may be more or less than two guineas. Or say this, in a case of hardship this man will not be on a fully paying basis and will fall within the terms of Section 24. Section 24 lays down the circumstances under which paying patients will pay.
Yes, but, of course, we are still dealing with this very limited group referred to under clause (d) of sub-section (2) of Section 14.
Not only with these. It goes much wider than that.
Well, if it goes wider it is even worse. I was taking it that this section was designed deliberatelyto deal with persons coming under clause (d) of Section 2 of Section 14.
No. If they come in under 2 (d) then they do not come under this.
I gather from what the Minister said on the early section referred to, the type of person who did not come in under clause (d) of sub-section (2) of Section 14, that the reason he wanted for having power to approve the charge was that the Minister for Finance wanted to know what he was letting himself in for.
That is right.
And that is one of the reasons why I do not want the charge imposed to be on the direction or the suggestion of the Minister for Finance through the Minister for Health, and through the Minister for Health down to the county manager. If it is to be determined in respect of a citizen of the City of Cork or County Tipperary I want it to be determined by the local officers who know the circumstances.
He would be better off under this clause because he would get something under it and nothing under the other clause.
What Deputy Morrissey said was an objection to one part of this. Under a particular part of an earlier section, that is Section 24, it is said that when institutional services are being provided for paying patients the charges may be such as the Minister may approve or direct, and that phrase comes in here. But does it not go wider than this? Supposing a person applying under sub-paragraph (a) of 28 is entitled to middle income group treatment, would not the phrase "charge for the service" include the 6/- a day business? If that is so I take it that all these sections from 25 down are joined together. The last phrase may appear, and Deputy Morrissey may be right in that, as being limited to the charge approved of or directed by the Minister. But there is no doubt about it that under the earlier part of the section a person availing himselfof the services provided under this part of the Act who is not entitled to these services—I mean a person of the middle income group availing himself of the services only provided for people who are in the destitute class, the old time pauper class—is that man not caught by this section? I thought he was. I was taking the sections from 25 to certainly 28 and 29 as being all bound together.
Up to 31.
Certainly later than this, as being all part of a code. From this time on there are certain services being rendered, not only the old rather easy-going or charitable type of performance under the Public Assistance Acts. We are now putting in categories and sharply discriminating between those entitled to free service and those entitled to a sort of free service in public wards on payment of the 6/- a day business; and one has then to guard against people being in one class maintaining that they are entitled to service. Section 25 deals with declaration as to means, Section 26 deals with persons moving from one class to another availing themselves of the services provided to one class, having been in that class and moved from it by a change of circumstances — he then may be entitled to a subvention and then you determine how the Minister is to decide on certain classes of people to whom certain services may be rendered.
Is it not right that Sections 25, 26 and 28 are part of the same precautionary measures against people availing themselves of services as being one type of person when, in fact, they belong to another. If I am wrong in that, of course, the argument falls to the ground. Deputy Morrissey has just raised this point in my mind that the phrase about the charge being approved of or regulated by the Minister may tie the whole thing to Section 24. Is that an indication?
I explained this rather fully before the Deputy came in. My instructions in drafting this Bill were to make sure that a person who seeks hospital accommodation would get itand that his means would be investigated afterwards. Getting from that, under Sections 25 and 26, 28, 29 and 31 we are dealing with the various things that might arise with regard to getting the information necessary regarding the making of charges on patients who have claimed treatment and are not entitled to it. The next section goes on to say that even if the person has left hospital you can recover the charges. Then Section 31 winds up with penalties for making false declarations. They all deal with the same argument—Sections 25, 26, 29 and 31.
And they are cumulative.
Yes.
A person who has demanded certain services is probably asked a question about means, he has given declarations and they are found to be false. In any event, if he has been in a particular class he has moved through circumstances from that class to another. That person has been found out. As I understand it, two things may happen—he can be prosecuted for the offence and fined——
Fined twice.
Maybe. He can be fined by the court and then he can be fined—if that is the way my friend uses it—by having a charge imposed on him which should have been paid by him in the first instance.
That is right.
I am right, there fore, that these things are cumulative.
There is a further one.
We are only on Section 28 at the moment. I think these are quite proper sections to have. Once you get away from the old, easy-going, charitable system of purveying medical aid to people who could not do anything for themselves, and come into the other region of people who are able to do something and who ought not to get full aid, then youmust have this protection against a person who makes a false statement or a person who represents himself as being an individual who should not be charged. I want the Minister, however, to make it clear that all this is meant.
Yes.
Question put and agreed to.
SECTION 29.
Question proposed: "That Section 29 stand part of the Bill."
Would the Minister say if there is in any part of this Bill anything whereby the regulations have to be laid before the Houses of the Oireachtas?
Yes.
In what section?
A section in the main Act.
Section 5 in the main Act.
That only applies to regulations. Orders are different. Orders are not covered.
This section sets out "any other person liable to maintain such persons for the purposes of the Public Assistance Act, 1939". What persons are actually referred to in that particular paragraph (b)?
Those are the regulations laid down under the Act of 1939. I will read them if the Deputy wishes
A person is bound to maintain his father and mother. An illegitimate person is bound to maintain his mother. A person must maintain his children.
Under 16 years.
Yes, that is right. That is practically all. A man is bound to maintain his wife and a wife is bound to maintain her husband.
Parents in respect of a child, a mother in respect of an illegitimate child——
Legitimate or illegitimate.
The purport and the full effect of this section ought to be understood. The charge that is imposed by a health authority is recoverable. It is recoverable by a court process, as a simple contract debt in any court of competent jurisdiction, from the person in respect of whom the charge is made or, if that person is dead, it may be followed beyond the grave through his legal personal representative. This may go further under (b), in that if they be parents and the charge is made in respect of a child it can be taken from them; or if they are dead from their personal representatives. If there is an illegitimate child, it can be recovered from the mother and if the mother is dead from her personal representatives. It is very efficient and quite ruthless, but I think you must do that when you get into this region.
Yes.
Deputy McGilligan was able to bring out these points because they are legal questions. In my capacity as a member of a local authority or as a member of this House, I have seen examples where such legislation was availed of by a local authority and it was extremely ruthless in practice. There is no other person who is in a position under law to recover debts to such an extent. I think I am right in saying that the ordinary person over 20 years of age is responsible for his own commitments and that a relative cannot be held responsible for whatever debts that person does not pay. Does the Minister think the local authority should have such wide powers? In the case I speak of, a man died in hospital and the hospital authorities were in a position to "corner" certain benefits which the man had to his name in national health insurance. The relatives of the patient were unable to draw the money which stood in that man's name in the national healthinsurance, yet the local authority had the right to take that money.
I see such a section in this Bill and I wonder if it is really correct that we should allow the local authority to follow a man's relatives and family to such an extent for debts which he has not paid off. These relatives, who are to be asked to pay off these people, will have families of their own to look after and their own expenses to meet. Why should they be held responsible for the debts of another man? I can understand it in the case of a child or of parents, but I fail to see why the local authority should have power to follow a man's representatives all over the country for payments like this.
Could that be answered? Is there a right to follow relatives other than the father or mother or their personal representatives?
Only the father and mother, and the child for the father and mother. In respct of the child, the father and mother; in respect of the illegitimate child, the mother; or the personal representatives of these people, if deceased.
You can also follow the wife or husband. Under Section 27 of the 1939 Act, every married woman is liable to maintain her husband.
Does that mean that the local authority has first charge, where a patient dies, on the assets of that patient, which must go to pay what he owes to them before his wife, children or anyone else are concerned in his estate?
That is so.
Surely that is severe?
Is not the answer to that, that once you get to the point of giving the benefits on a legal basis, the legal basis being the determination of income, the State, which is paying on that basis, ought to be able to protect itself? It may be hard to follow people beyond the grave, but Isuppose the situation is that the parents have got some benefit through the child having got benefit to which the child was not entitled, even though the child be an adult—and similarly in the case of parents. It may seem harsh, but when we are no longer on the easy-going, charitable disposition of money to a certain class who cannot afford these services and when we are giving the benefits to other people, but limited, as they should be limited—it is only supplemental aid instead of full aid—you must give these powers to the State to obtain that recovery where there is fraud.
I submit that the position may be entirely different. A man may be a patient in a local authority hospital and in the middle income group and his earnings may be such that he is asked to pay £2 2s. a week. When that man dies, his family may be destitute. Here the local authority comes in and, having made their assessment on the basis of what his income was when he was alive, they have the right to take his assets, before his wife and children.
Do I take it that if a child dies—but had reached the legal age and was over 21—and the parents had no assets whatever, even so the local authority or the Minister has the right to follow the parents for those assets, to pay for the debts that have accrued for the treatment of the deceased child?
I do not think that could be right. It must be fairly obvious that this can only apply to people above the middle income group, as there will be no debts due for those belonging to the lower income group or the middle income group. Therefore, they must be in the paying patient class. That presupposes a certain income or certain means. Let us say that the father was a wealthy man and that he died. His income was there but it would be from his estate that the recovery would be from his estate that the recovery would be made—not from the son of 21, who had nothing.
Does the local authority have priority before any other person?
So far as I know.
Is the £600 a year income rated by the individual or by the household?
By the household, clearly.
Yes, the income is the household income.
Let me put this hypothetical case to the Minister for his consideration. Suppose a man had a daughter working as a typist for a small salary and that she went into hospital and, after an extended course of treatment, died. She had no assets. She was living at home. When she dies, the State is in a position to get her debts paid by the parents, provided they are in this particular income group.
Yes, if they are above the middle income group. I take it that that is so.
Would the 6/- a day not be a charge?
Yes, possibly.
Then that applies to the middle income group.
It might, to some extent.
It may be that the demand could not arise except in limited circumstances, but the whole class who are asked to pay 6/- a day could come under this.
Yes.
Section put and agreed to.
SECTION 30.
I move amendment No. 50:—
In sub-section (1), page 9, line 38, to delete "may" and substitute "shall".
The title of this section would lead one to believe that its main function is the affording of facilities by schools to the health authority for the examination of children. That is thecase with regard to sub-sections (1), (2), (3), (4) and (5).
The purpose of the amendment is so to amend sub-section (1) as to make it obligatory on the health authority to give prior notice to a school manager or to the principal of a school that such an examination is to be held.
I am beginning to believe that I do not know the difference between "may" and "shall" when I read these different Acts of Parliament. I could say that in respect of many of the earlier sections.
I think the Minister should accept this amendment so as to provide that the health authority will give this notice to a school manager or to the principal of a school—that there will be no option and that the obligation will be on the health authority to give this prior notice.
I cannot imagine that a health authority would walk into a school and carry out an examination of the children or that they would even leave it to two or three days' notice. The notice provided for in this section is, I think, seven days. I presume that that would be adequate notice to any school. I presume it would be an adequate period within which to rearrange the school programme and to provide the facilities that would be required by the doctors, nurses and different officials of the health authority who propose to carry out the examination.
I submit there ought to be an obligation on the health authority to give seven days' notice before carrying out a medical inspection.
I can see Deputy Corish's point of view and would agree with it with regard to part of this section but I should like to divide the different purposes of the sub-section. As it runs, the sub-section reads at the moment:—
"A health authority intending to arrange for a health examination of children at a school, under this Act, may give to the school manager of the school notice in writing of such intention stating the day or days (not being earlier than seven daysafter the giving of the notice) on which and the time at which the examination will be held and requiring the school manager to afford all reasonable facilities for the examination."
If "shall" is substituted for "may" then it is made an obligation on the health authority to give notice and to require the school manager to afford facilities.
I agree with Deputy Corish that if such examination is to be held, notice should be given. It should be obligatory to give the notice but I do not want to bind the health authority that they shall give the notice and that they shall require the management to arrange the facilities.
If the health authority decide to have an examination, I agree with Deputy Corish that they should be obliged to give a notice—not "may". As I read "may", it would apply to both parts of the sub-section. It would mean that they might give the notice and might require the school manager to afford the facilities. I do not think that is intended.
The Minister may tell me that, according to the parliamentary draftsman, "may" often means "shall". Then you leave it to the courts to decide when it does mean "shall" and when it is not obligatory but is permissive. But if he says it means "shall" then the health authority must give notice and require the school manager to provide the facilities. I should rather leave it open.
"May" means "may" here. The position is that in most cases there is no trouble whatever. The school medical inspector, the teacher, the manager, and so on, get on well together. The medical inspector drops a notice that he will be around on such a day. Maybe he gives it to the teacher and the teacher gives it to the manager. However, you may have difficulty in certain cases. This is to cover a possible difficult case. If there is a case where there is trouble about a managergranting a school, then this section would come into operation. The local authority may avail of this section if they like. If they do, they serve notice and it amounts to "shall". When it is served, the manager shall provide facilities and, if he does not, there is a penalty.
To get the Minister's position clear, I gather that the section should read: A health authority may arrange for a health examination and, if it does so arrange, shall give notice.
That is right.
That is not what is in the section.
They do not have to give notice if it is arranged.
Suppose a health authority decide to arrange for a health examination of children at a school. It is not obligatory to arrange: it is discretion. But if the health authority decide to arrange, it ought to be obliged to give notice.
Where it can be arranged amicably, no notice is given, but where it cannot be done amicably, then they can invoke the section.
If they are going to invoke the section, they should give notice.
They do.
That is not here.
Sub-section (1) of this section reads:—
"A health authority intending to arrange for a health examination of children at a school, under this Act, may give to the school manager of the school notice in writing of such intention stating the day or days...."
I take it from that, that it is not obligatory on the health authority to give notice to the school manager that they are going to carry out an examination.
It is not obligatory while you can arrange it amicably.
Then you come down to sub-section (4) of this particular section, which reads:—
"The school manager of a school to which a notice given under sub-section (1) of this section relates shall cause all reasonable facilities to be given for the holding of a health examination in accordance with the notice and on the day or days and at the time mentioned therein and, if he fails to do so, he shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding ten pounds."
I take it from that, that the school manager has to permit the examination.
Surely if the school manager does not permit an examination he is liable to a fine of £10. There are to be no half measures with the school manager. There is no question of "may" or "shall." He has to do it and, in fairness to him, he is entitled to have it obligatory that he should get seven days' notice. As I read the section, the school inspector need not give him that notice. I think it is only fair to the manager that he should get that notice.
I will explain again. In most cases it is done in a friendly casual way, if you like. The school examiner drops a note to the manager that he will be round on such a day and he knows there will be no trouble if he makes the examination. He may, however, come up against a crotchety manager. In that case the authority may adopt this section but, if they adopt it, then they must give seven days' notice.
Where is the "must" in this?
I submit that there is no obligation to do so, but the obligation is on the manager.
Under sub-section (1) a notice must be addressed to the school manager. Sub-section (3) says that a copy of every notice shall be either delivered to the manager or sent by post to the manager. So that unless hegets the notice nothing can be done to him.
If you put the obligation on the school manager to permit the examination to be held, why not put the obligation on the local authority to notify him of that examination?
It is in that.
I cannot see it.
There is no offence unless he gets notice?
Yes.
That is all subject to sub-section (2), which means that he is deemed to have got it if it is posted to him. Is not that right?
It may be either delivered to him or sent by post.
Sub-section (2) means that if it is posted to him he is deemed to have got it, but he may never get it. I took the Minister's point to be that a person could not be held to be guilty of an offence or subject to a fine unless he gets notice, and the Minister's answer is that the "may" becomes "shall".
As far as giving notice is concerned.
And as far as the consequences that follow?
Yes.
Suppose the local authority maintain that they have ordered this examination, the onus should be on them to prove that they have definitely done so. As I read sub-section (1), they need not. It is not definitely implied that they have to do so.
It is not obligatory on the local authority always to adopt this method. Sub-section (1) really amounts to this, that the local authority need not adopt this section in every case.
When the Minister says that the local authority neednot adopt this section, does it mean that the local authority need not adopt the giving of notice?
That is right if they can arrange it otherwise.
We understand that the proposal is that there shall be compulsory school inspection of national and elementary schools, subject only to the right of any parents not to subject their children to examination.
That is correct.
This section definitely provides for the compulsory carrying out of health inspection and treatment of school children in national and elementary schools.
The compulsory provision of facilities.
And the compulsory carrying out of them.
Surely it means facilities for the examination? Does it merely stop at that?
First of all, the local authority will provide the facilities and the examiner comes along. Supposing every pupil says: "My people will not allow me to avail of this", then there is no examination. But the facilities are there and if there are children to be examined they are examined of course.
That leads me to the position we were discussing before. The Minister's approach to the matter is that there is not only an obligation on the local authority to provide all the machinery for the examination of school children in national schools and in schools providing elementary education, but that there is a statutory compulsion on them to put the examination into force, subject only to the right of a parent to withdraw his child from examination.
That is right.
That leads me to the question we were discussing before.The Minister did circulate amendments which would bring vocational and secondary schools under this compulsory scheme, but he substituted an amendment which confined it to national schools and schools which provide elementary education.
When dealing with amendment No. 30 to Section 18, I raised the question as to what is elementary education and how schools can be defined in relation to the amendment put in amendment No. 30. I drew attention to the fact that under the amendment that was passed already there is brought in under the compulsory effects of the Bill small private schools where eight, ten, 12 or 14 children are getting juvenile education. I also drew attention to the fact that in some of the large secondary schools they have a junior school, whether it be a part of the institution or a subsidiary to the institution, in which education analogous to the education given in the national school is given. I raised the question as to whether these schools were to be subject to the compulsion of this Bill. This section would require the manager of a small private school — there are a certain number of them throughout the country—where there are from ten to 20 children receiving the most elementary education, to provide facilities in the school for the examination of the children, except the parents object to it. I should like to ask the Minister if he has considered that matter since we discussed it before.
We discussed that matter and I will consider it before the Report Stage.
I would like to be clear on this sub-section (1) of Section 30. It says that the health authorities may arrange for examination, and goes on to say the different ways in which it can convey information to the school manager that an examination is to take place, and the fourth sub-section says the manager shall cause all reasonable facilities to be given. In the event of a dispute, and it is conceivable that the local authority can claim that they have instructed the school manager, and theschool manager may maintain—which would possibly be true—that he had never received any intimation to that effect. Who is then going to decide the issue?
The court.
The court decides, but in regard to the provision in sub-section (3), I think Deputy Dr. Esmonde is making a point which has occurred in quite a number of circumstances. It occurs in the ordinary law of contract where two people are going to enter into a certain type of relations.
Indeed, in certain parts of the law of contract, it is laid down that if you put a letter into the post, it is accepted that it was delivered in the ordinary course of post. That is the case with people making contractual relations, but a man may say: "I will not have this contract unless you notify it in a certain way." The legislative body here is making this arrangement and the Minister would say, possibly, with certain limitations, there must be notice given to a school manager or maybe to the principal teacher before an offence can be committed. Sub-section (1) comes down to sub-section (2), in which the notice is deemed to be given if it is sent by post. It is taken to mean it has arrived, if it is put into the post-box. It may never get there but it is deemed to be delivered. If proof can be given to show that the letter was posted it is deemed to have arrived at a certain time although a man may say he never got it, and the court is bound to accept that if it is posted it arrives in a certain limited period of hours after that.
I know the difficulties and I know that this phrase is used at many points in regard to ordinary civil law, contracts, torts, and so on. Here, however, we have a criminal law and we are going to have an offence. Deputy Corish wants the word "may" to become "shall". I agree that the word should be "shall", but is there any need for this penalising part of Section 4 at all? I know the Minister's answer will be: "If you have not a penalty clause, what is the good ofgiving powers?" You must be in a position to punish if they are not carried out, but the Minister himself has said it will be a very odd case indeed in which this will arise and more particularly when all that happens under the section is that facilities must be provided. Nobody need avail of them. All the parents may say: "We do not want our children examined." But you go through the farce of saying to the manager: "Make these facilities available." Is it considered necessary to have this penalty clause there? If the penalty clause goes, the difference between "may" and "shall" does not matter much. It is only because there is a penalty I would insist on saying you must give notice. I take the Minister as having met that point by saying that if you do not get notice there is no penalty. But what is the necessity for a penalty? I wonder is it worth having a penalty?
If you have a manager who will put obstructions in the way, and say: "No. I will not allow any examination in my school", I do not know what you are going to do about it. The penalty may have a good effect. Anyway, the whole law would be brought into a sort of ridiculous position, if you had not some way of following up serving of notice. I would be rather surprised if it ever came to that point of the penalty being inflicted, but it must be there. I think the effect of Deputy Corish's amendment is that the local authority would have to serve notice in every particular case. Is it not better to carry on in the free and easy way they are going at the moment, if this clause only comes in for the very odd or rare case? However, I would be quite prepared to consider Deputy McGilligan's point in regard to a letter being delivered.
You could do it by leaving out sub-section (2) of this. Suppose you cut that out and say you can incur the penalty if in fact notice has been given too.
We will consider that. But would not a registered letter be all right?
It would strengthen it.
You would. However we can consider that.
Amendment, by leave, withdrawn.
Question proposed: "That Section 30 stand part of the Bill."
The point was raised about the old amendment to Section 18. There was a Section 18 which is now replaced?
Yes. I drew attention to that, and what is left is the rigid compulsory inspection and treatment of school children and the rigid demand in the schools of whatever kind is for accommodation to carry them out. The amendment that was withdrawn extended it to secondary and vocational schools. That only underlines the continuing compulsory spirit as regards national schools and elementary schools.
I do not know where we are with regard to school inspection between the old-time Section 18 and the one that is introduced. Was amendment No. 24 carried?
Yes.
Amendment No.24, which I understand was carried, changed Section 18. Was there any point of reconciliation necessary between the old Section 18 and the new section or do they meet different points?
Deputy McGilligan is speaking of amendment No. 24 on the original list of amendments that were withdrawn and amendment No. 30 was substituted for that in the current list. That was passed. Section 30 is now intended to apply to national schools and to any school in which elementary education is given. There is no definition of elementary education.
Am I right in thinking that Section 30 applies—I do not know whether a rigid definition is required—to what we know as elementary schools?
Yes, including national schools.
Section 30 would apply to a national school and to a private school carried on by a schoolmistress giving education to young children. It would apply, as far as I know, to a junior school establishment like Belvedere and to a junior establishment like that carried on in Blackrock College or to any of the junior schools run by the Loreto College in Stephen's Green although there is no minimum number specified
Section 30 agreed to.
SECTION 31.
I move amendment No. 51:—
In page 10, to delete all words from and including "fifty" in line 19 down to the end of the section and substitute "five pounds".
A similar amendment was considered and rejected by the House earlier but it does occur to me—and perhaps the Minister could throw some light on it — that there is a possibility that anybody who makes a false declaration with regard to means, is liable to be prosecuted in accordance with the provisions of Section 26 and also of Section 31 and on top of that is liable to be charged for the services which he might have been given by reason of making that declaration. As Deputy Kyne said on Section 26, the fine seems to be rather stiff. He did agree that some fine should be imposed but he thought that a fine of £20 was rather too heavy. Similarly, in regard to Section 31, a fine not exceeding £50 seems to be pretty heavy and on top of that discretion is given to the court to imprison an offender for a term not exceeding three months. I would be glad if the Minister could give some information with regard to my submission as to the duplication of the penalty under Section 26 and Section 31. It seems to me that a person who committed an offence under Section 26 could also be held to have committed an offence under Section 31 and vice versa.
I imagine that is possible but I could not say definitely. Itappears to be more a legal question. It is possible that he might be charged under Section 26 or Section 31 but I do not think he would be charged under one and the other. He could also suffer penalties under Section 28 and 29 at the same time by being compelled to pay what was due to the hospital. These are the usual penalties for that kind of offence. Under the Social Welfare Acts, there is the very same penalty of £50 or three months in jail for making a false declaration. That was taken from the Old Age Pensions Act which goes back to 1908. I think the penalties were the same all the time. As Deputies know they are very seldom inflicted, under the social welfare code. I suppose they will be very seldom inflicted under the health code either. I think the penalties are not too heavy. If we are to provide services of this kind for certain classes of people, I think that anybody who deliberately and knowingly tries to claim a service that is not due to him should be severely dealt with.
I should like to know who comes under the section.
Anybody who makes a false declaration.
When we come to consider the question of who may make a false declaration, we are driven back again to Section 25 where a health authority may take any such steps as they think fit to verify a declaration made to them. We had the picture, whether we were justified in drawing it or not, of the county manager ascertaining from, say, a shopkeeper whether a person making the declaration had any substantial debts with him. We had also the suggestion that the county manager may inquire of employers to ascertain the wages that members of the declarer's family were receiving and it was suggested that inquiries might be made from bank people and so on. In Section 31 we read again:—
"If any person for any purpose connected with this part of the Act ... knowingly makes any false statementor false representation or knowingly conceals any material facts", etc.
It is deemed to be a purpose connected with this part of the Act if a shopkeeper gives information as to the debts that a declarer has in his shop? If a shopkeeper in reply to a query from the county manager gives information of that kind that is incorrect, does he render himself liable to be charged under Section 31 and is he liable to the penalties indicated? If a county manager pursuing inquiries and taking such steps as he thinks fit and such as are contemplated under Section 25, makes an inquiry with an employer as to what he is paying certain members of the declarer's family and if that employer gives information that is incorrect does he come within the term, "for the purposes of obtaining any service provided under this part of the Act"?
I take it that any person who makes a false declaration or gives false information would be liable to the penalties laid down. Of course it would be the court who would inflict the penalties and the court will have to be satisfied that these declarations were actually made and were false. I should like to remind the Deputy, however, as I did before, that the health authority has no power to compel the shopkeeper or the employer to give information. They can say that they will not give it.
If they were told that refusal to give it is likely to have an adverse effect——
If I put myself in the place of the local authority or the county manager, and if I had any suspicion I think I would say: "Unless you satisfy me, I am not going to pay."
That gets us back to the case of the bank manager about whom the Minister was talking before the tea adjournment under Section 26. I was challenged as to whether the bank manager could be forced to give information. The Minister, I am sure, knows the procedure. The Revenue Commissioners, if theywant to get at a person with regard to income-tax, ask him to produce his bank account. He says: "Not at all." The Revenue Commissioners take that as a sign of weakness and they double his assessment and in the end the man is forced to produce his accounts. I am afraid I was distracted by something else when the Minister was speaking just now, and I did not fully appreciate what he said. He stated that they need not give information. I do not know the circumstances, but the fact of concealing a material fact may arise. It may be that the person to whom the Minister referred is not obliged to give information. If the person is not obliged to give information, he should not be charged with knowingly concealing any material fact.
A person can err by positively making statements that are known to be false, or not believed to be true, but he can also commit an offence by concealing a material fact, and quite properly so—it is the ordinary law — if these penalties are to be imposed. With regard to the whole code which travels from Section 25 down to and including Section 31, I do not know whether it is necessary to have all these sections. I do not know whether each is intended to hit at a different possible offender, but they are all here lumped together, and there is no doubt that what Deputy Corish says is true—they can all light upon the same individual. A man could be penalised under Section 26 and subjected to a fine of not more than £20; the Minister could also follow him to get the charges under Section 29; and he could be penalised under Section 31 and subjected to a fine not exceeding £50 or a term of imprisonment not exceeding three months, with the usual addition "or both such fine and imprisonment." So far as I read these together, I do not see any point of difference between the possible offenders under them. All these sections could light on the same individual. That may be necessary—I do not know whether it is or not—but it seems to me to be rather overloading the penalty sections.
Again, however, let us at least face the fact that, once we get away fromgiving easy charity, in the best sense of the word, to the people deserving of charity and arrive at the stage at which certain people are entitled to certain services if they are in certain classes, without a doubt you must have unfolded all the armoury of the law as against possible defrauders.
You have to have both the inspection with regard to means under Section 25 — though it may be worded peculiarly — and you must have the penalties, or at least some of them, laid down. It must be accepted, however, that we have been dealing here the whole evening with the means test, with the fact that we move from the giving of service of a particular kind to people who just cannot afford it themselves to the higher stage of giving something, although I think it is not very good, to certain others by way of payments and have to discriminate between people in the lower, middle and higher classes and so must make provision for hitting people who get benefits to which they are not entitled legally—there is no longer any moral obligation—by legal means.
My only difficulty in this regard is whether Section 31 is necessary when there is Section 26 and the power to recover charges. If I am told that Section 31 is necessary, I ask, in return, if it is necessary, having Section 31, to have Section 26 and the provision with regard to recovery charges as well. I do not see the necessity for them all.
I think the Public Assistance Act had most of these provisions, provisions exactly like Section 31.
I can imagine Section 31 as a comprehensive section, but I do not see why you should add Section 31 to Section 26.
It will hardly apply to the same people, I think.
I can easily see the same people coming under the sway of both. The Minister, I think, ought to be content with Section 31.
Section 31 covers the whole of Part 3—about 18 or 19 sections.
I suggest that Section 31 might provide all he requires. I am with him that, once you give service to people on certain conditions, you ought to be in a position to see that the conditions are fulfilled.
The case dealt with by Section 26 is a different case. A person may make a true declaration that his means are so and so. He may go to hospital and may be there for a long time. While he is there, his means change, but he makes no false declaration, no false statement. Therefore, he is dealt with in a special way.
Does he not conceal a material fact?
He does, but he has not made any false statement, and, as Deputies will notice, he is not dealt with so severely under Section 26.
If you set out the greater penalty, the court will have discretion under the greater penalty to impose a lesser penalty.
It is no harm to have him in a separate category.
Unless you want to hit the fellow three or four times, is it necessary?
I do not think it will happen. If you see the courts of this country hitting a man three or four times, you may take it that he is a bad case and deserves it.
If he is a rogue who has made a false declaration and concealed material facts, by all means get after him, but can you not kill him under Section 31? You get all you want from him under Section 31.
Very likely, but it is no harm to have it there.
Question put and agreed to.
SECTION 32.
I move amendment No. 52:—
In page 10 to delete all words after"seaports" in line 29 to the end of the section.
This amendment, if accepted, would mean that the principal Act arrangements with regard to certain rights enshrined in that Act would be reverted to. As we see it, this section means that the provision for notification to a person of his rights is safeguarded by Section 31 of the principal Act and, under Section 32 of the same Act, he has a right to refuse. Under this new section, he loses both the right to be notified of his rights as well as his right to refuse.
I should like the Minister to give us his reasons for this and, in particular, to indicate how he justifies the inclusion of that section as against Section 4 of this Bill, which states that no compulsion will be used on an individual in relation to this Act. Surely one is a negation of the other. We put down this amendment for the purpose of opening up discussion and giving the Minister an opportunity of explaining what was not clear to us, at any rate.
The Deputy will understand that whatever we may say in Section 4 with regard to examination or treatment where the person himself is concerned, we should give perfect freedom, but we cannot permit any person to be a danger to everybody else. We have to bring compulsion in in that connection, and, in the case of all infectious diseases, compulsion is used and there is no way out of it. What we are asking for in this section is that men working around an airport will, if necessary, be compulsorily vaccinated. That is what it amounts to, and I think it would be very bad to oppose that in any way, because if a smallpox case was diagnosed as coming in through the airport, there would immediately be a rush to vaccinate everybody concerned, and if there was any such thing as a hold up, because of a person making an appeal that he did not want to be vaccinated, the whole thing would be useless. I think we will have to have compulsion in cases like that.
I should like to know how far the compulsioncan go. One can appreciate that there might be a smallpox epidemic and that such an epidemic might be connected with Dublin Airport. One can understand that it might be necessary to vaccinate all the airport workers, but would there also be a similar necessity to vaccinate the bus drivers bringing buses to and from Dublin Airport? As Deputy Kyne explained, in the Act of 1947, there was an obligation on a local authority to notify certain people of their right to opt out of vaccination. Section 32 gives them that right to opt out. The Minister here wants to take power unto himself to make regulations with regard to airport and seaport workers. Does he mean that these regulations will be enforced in the event of an emergency, or does it necessarily mean that, in respect of airport and seaport workers, a condition of employment at these places will be vaccination or immunisation against certain forms of diseases?
No.
The Minister should give us some idea of the type of workers, especially in relation to seaport workers. If one were to support this case, one could appreciate the necessity for applying these regulations to port workers around such places as Cobh, Dún Laoghaire and Rosslare Harbour, but does it necessarily apply to the dock workers in Wexford, Waterford, Wicklow and Arklow? As Deputy Kyne has said, this amendment is merely for the purpose of getting information. We would like to know if the Minister intends to apply these regulations to compulsorily vaccinate during the time of emergency or will it be a condition of employment in these areas?
Deputy Corish, if I may say so, has gone off at a tangent. I understood that the objection of the proposers of this amendment was to the words contained in the paragraphs lettered (a) and (b). Supposing we stop short at that, the Minister would then be given power by this addition to the 1947 Act to make regulations and these regulations might requirethe vaccination against smallpox of people engaged in work at or around seaports or airports. With that built into the framework of the 1947 Act, I am in entire agreement. But in the framework of the 1947 Act this is what would happen: If the Minister did make a regulation providing for vaccination against smallpox, such a regulation must contain a provision for the giving of information to such person — leave out the parent for a moment—of his right to exemption under Section 32.
At the outset that appears to be rather terrifying because it seems to me that a person could claim exemption. But the right to exemption is extremely limited under Section 32. The section is too long to read now but, as I understand it, it means that if a person is required under regulations to submit himself to vaccination and if he, within the prescribed period, sends a statement that he objects to such a vaccination, then he gets off the vaccination unless—and there is an unless—the Minister, by Order, declares that it is necessary that such person should be vaccinated. Why should we not keep that on in connection with this? Suppose someone comes by air or sea with smallpox; the people engaged at the airport or seaport might become carriers or spreaders. Now some attempt must be made to stop the disease being carried or spread. Surely Section 32 with its limited exemption is good enough. I do not know what the special urgency is. I do not know that there would be any real delay under Section 32. The Minister can make these Orders in a flash. If a person does not say he objects, then he is vaccinated. If he does object, the Minister can overpower him almost immediately with an Order. Why then does he want to provide that the obligation to comply with a certain provision shall not apply and Section 32 shall not apply as regards vaccination?
I think the Deputy has read Sections 31 and 32. The Deputy knows that the regulations provide that the Minister must give notice to the person concerned. Regulations alsoprovide that the person may send back an appeal, or whatever you like to call it, notifying the local authority that he wants to appeal against such vaccination. All that takes time.
But the notice is not taken out by this. The giving of notice is not taken out.
That is true, but it all takes time. Smallpox has become rather prevalent in England. While there was only sea communication between the two countries, travel was somewhat slower and an outbreak might be discovered perhaps on the way over, or something like that; but now with air travel the position is much more dangerous. We might get a smallpox case here. That case might be here for a few hours before it is discovered. We want to take instant precautions if we discovered such a case. I think there should be no delay. We should be in a position to get everybody here at the airport or the seaport, as the case may be, through which this particular case entered the country vaccinated as quickly as possible so that if staff are infected in any way vaccination will largely nullify any bad effects as far as that staff is concerned and as far as their spreading of the disease is concerned.
First of all, let me answer the point in relation to the notice. The notice is not taken away. That is a bad point. You must give notice, but the regulation must prescribe that a person is given information that he is entitled to exemption. Under Section 32 what is the right to exemption? It is if the person appeals within the prescribed time. It is the Minister who prescribes the time. He can say an hour; unless the person inside an hour sends him the notice he will be vaccinated.
But is it not futile? We are not going to exempt him.
Supposing a man says: "I object to being vaccinated; I have already been vaccinated."Surely he ought to be given some time in which to make that case.
He can tell the doctor when he walks in.
The Minister says: "I am going to have you vaccinated and we will choke down all your protestations and everything else; you can be exempt but you must serve notice within an hour and, if the Minister thinks it is necessary to vaccinate you, he will do it."
Why wait for that?
You preserve the right under Section 32.
Why wait an hour? We are not going to exempt him in any case.
Is there any prescribed time which will be short enough to give the protection? I do not know. If that is the Minister's case, I do not know that this amendment is necessary. All these regulations are always aimed at the worst possible case.
That is true.
Then you are giving power to deal with cases that are not the worst possible.
But you must be in a position to deal with the worst cases.
I agree, and I think you can do it by saying the prescribed time is one hour. Even if you serve notice inside that time and the Minister makes an Order, you will be vaccinated, but the onus is on you first of all to say all that.
I am rather inclined to agree with these regulations. I think they are necessary. The 1947 Act removed compulsory vaccination. Now we have not had a case of smallpox here in the last 50 years. Smallpox, however is a comparatively common occurrence in different parts of England. I have myself seen many cases of it there. I can visualise a situation arising here in which smallpox could become an acute emergency.Transport facilities have opened up considerably between this country and Britain and it is quite possible that we might get a case of smallpox. For that reason I think it is necessary that the Minister should have power. As far as I understand the position, the 1947 Act, the principal Act as it is called, gives a person the right to protest against vaccination. In other words, it gives him the right to be precluded from being vaccinated. I think the Minister is right in seeking these powers should an emergency arise, and smallpox is an emergency. If we were to get a case of smallpox and if the disease were to spread, there is no knowing where it would end. We might have a very severe epidemic. Where epidemics are fairly common, the disease is nothing like as virulent as it would be in an area where it is practically unknown.
Smallpox is very prevalent in the north of England, around Nottingham and Derby and for that reason, the actual disease is nothing like as virulent there as it would be here where it is practically unknown. If we had an epidemic I am sure the disease would be very virulent. It would spread very rapidly. There would be a lot of deaths. Any cases that would occur would be serious cases. Since we have abolished compulsory vaccination, I think the only thing we can do is to bring in a regulation such as that proposed here to safeguard the populace against the risk of an epidemic of smallpox. It would be appalling if we had such an epidemic here.
Might I say that we did not put down this amendment from the point of view of obstruction? It was put down with a view to securing the information now given by the Minister. We accept the general principle. In connection with the health of the public generally the Minister is in duty bound to take whatever emergency measures are necessary. Could not the Minister do as suggested by Deputy McGilligan? The Minister has the power to fix the time limit. We simply wanted to preserve the rights of the people.
I think the Minister is trying to prevent any infection coming into the country. Thank God we have not had any for the past 50 years. Were the Minister to take extraordinary measures here he would only be protecting the individual against one of the most virulent and disfiguring diseases imaginable. I appreciate that Deputy Kyne's amendment was put down for the purpose of clarifying the position. I have disagreed with the Minister so much on this measure that it is only right, when I find myself in complete agreement with him now, to say so.
Amendment, by leave, withdrawn.
SECTION 32.
Question proposed: "That Section 32 stand part of the Bill."
The original section has been amended. Apparently the section is an afterthought. Since 1947 was there any occasion when there was a suspicion of a case of smallpox? Is this based on any real fear. Was there any occasion on which we were threatened with smallpox?
To swing over to another point, when I was much younger than I am now I remember there was a disease that was talked about, bubonic plague. I understand that disease comes from vermin. It is a thing that certainly arises in the vicinity of ports. The Minister is taking precautions against smallpox, but is smallpox the only disease that can spread rapidly? There may be other diseases which must and should be prevented.
From what I read about it many years ago, bubonic plague is not a thing which spreads rapidly like smallpox. If contacts are discovered immediately, there is probably not any terrible danger. There is no vaccination against it. All you can do to prevent the spread of bubonic plague is to disinfect. Since 1947 suspicious contacts arrived in this country. We were indeed, lucky that the suspicious were unfounded. On a few occasions at least people arrived here who were suspected contacts. We were informed bythe people from the other side and we kept the cases under supervision. It turned out that they had not contracted the disease.
While Section 32 is particularly directed towards vaccination, Section 31 of the principal Act deals with regulations for preventing the spread of infectious disease and speaks of specified treatment which I think is a wider term than that of vaccination. I read about bubonic plague when I was young, and certainly it was regarded as a terrifying business at the time. The Minister says there is no vaccination against it. The section deals with specified measures which would include diseases like bubonic plague.
I take it that compulsory vaccination will be carried out by the health authority and that the lymph will be supplied by the health authorities?
Certainly, in this case.
Question put and agreed to.
SECTION 33.
Question proposed: "That Section 33 stand part of the Bill".
What has happened to make Section 33 desirable?
Deputies will remember that Section 38 of the Health Act, 1947, enabled the medical officer of health to detain a person who was suffering from an infectious disease or who was a probable source of an infectious disease. The section is a very long one. Its effect was to enable a person to be detained. He could appeal to the Minister and have his case heard within 21 days, following examination by an independent medical man. That is the gist of the section in the 1947 Health Act. It was put to me that the man could be there for 21 days anyway on the action of a particular doctor who might be wrong in his diagnosis or might even be prejudiced against the person. It was put to me that it washardly fair to have a person detained for 21 days on the action of one man. This section is to ensure that at least two men would be responsible before a man could be detained in that way.
Without meaning any disrespect to the category of people defined in this as chief medical officers, I thought the Minister wanted to have a chief medical officer and another general practitioner. The Minister now, more or less, says that he wants two people. Section 38 deals with the detention and isolation of a person who is a probable source of infection. It says that where a chief medical officer is of opinion, either consequent on his own inspection of a person in the area for which such medical officer acts or consequent upon information furnished to him by a registered medical practitioner who has inspected such person, that such person is a probable source of infection with an infectious disease, the medical officer may order the person to be detained and isolated. The Minister now wants to make it that two people must sign the order. Did the Minister want to get away from the chief medical officer as defined in the Act? A chief medical officer is defined in the Health Act, 1947, as either the medical officer of a county borough or a county. If the Minister wants to get an independent practitioner with the chief medical officer, he should at least provide for that. In other words, could two chief medical officers sign the order? Is that right?
No.
A chief medical officer is a registered medical practitioner?
Yes.
This section would be met by two chief medical officers signing. A chief medical officer in one county could call on his colleague in another county and ask him to sign. I thought this section was based upon your taking a chief medical officer and providing for an outside practitioner as well. That is not provided for. I do not mean any disrespect to the chiefmedical officers. We will get two doctors and that is good enough. I think it would be better if the Minister stipulated a chief medical officer and another practitioner who is not a chief medical officer.
The section deals with a chief medical officer acting on his own information or on the information of a medical practitioner. Where he is acting on the information of a medical practitioner there are two doctors. If he acts on his own information he takes responsibility himself and thisamendment is to ensure that in no such case can a man be detained under that section unless two doctors take responsibility.
I move to report progress.
Progress reported; Committee to sit again.
The Dáil adjourned at 10.30 p.m. until 10.30 a.m. Thursday, 25th June, 1953.